[Cite as Wilson v. Gregory , 2023

- Ohio

- 4782.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

SARAH WILSON, ADMINISTRATOR OF

THE ESTATE OF JACK HUELSMAN, et

al.

,

Appell ants

,

- vs

-

ERIC GREGORY, et al.

,

Appell ees

. :

:

:

:

:

: CASE NO. CA 202 3

- 06

- 039

O P I N I O N

12/28/2023

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

Case No. 2021 CVC 01001

Friedman Gi lbert + Gerhardstein, and M. Caroline Hyatt and Jacqueline Greene

, for

appell ants

.

Mark Tekulve, Clermont County Prosecuting Attorney, and Brian C. Shrive and Jeanette E.

Nichols, assistant prosecuting attorneys, for appell ees

.

M

. POWELL

, J.

{¶ 1} Appellants, Sarah Wilson

, the administrator of the Estate of Jack Huelsman,

and Cheryl Hue lsman, appeal a decision of the Clermont County Court of Common Pleas

granting summary judgment to appellees, Eric Gregory and Meredith Walsh

, both deputiesClermont CA2 0 2 3

- 06

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- 2

- with the Clermont County Sheriff's Office. 1

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This case concerns the tragic death of Jack who died on September 19, 2015,

of a self

- inflicted gunshot wound

. Cheryl was Jack's wife ; S arah is the ir daughter

. Jack

suffered from bipolar disorder and had terminal cancer

. Cheryl is a former nurse who has

encountered people experiencing mental health cris es and who was on family medical

leave to care for Jack. On the morning of September 19, 2015

, Jack accused Cheryl of

playing recordings of political speeches outside his bedroom

, taking and crumpling Korean

money

, s tealing his wallet and keys

, a nd sabotaging his electronic devices. Distressed,

Cheryl called Sarah

, informed her that Jack was paranoid and agitated and experiencing a

mental health episode in which he was hearing voices

, and ask ed for help calming Jack.

According to Sarah, once on the phone, Jack repeated his delusions to Sarah and told her

that he was a prisoner in his own home, that he did not have a reason to live, and that if he

killed himself, Cheryl would be unable to keep their home because she would not get life

insurance

. He then said goodbye to Sarah and hung up. Sarah called Cheryl back and

they decided to call 9

- 1

- 1 ; however, because Cheryl felt she could not do so within Jack's

earshot, Sarah made the call.

{¶ 3} Sarah called Clermont County Emergency Services at 12:06 p.m. and

informed dispatch that Jack was having a psychiatric emergency, was mentally ill and

bipolar

, was hearing voices, was thinking of committing suicide, and had been on a

downward mental decline. She further informed dispatch t hat there were guns in the home.

At 12:08 p.m., Deputy Gregory was dispatched to the Huelsman home along with an EMS

unit. Dispatch informed Gregory that the call was for a "64

- year

- old male hearing voices

. "

1

. Gregory and Walsh will be collectively referred to as " the Deputies

, " and individually by their last name.

Jack and Cheryl Huelsman and Sarah Wilson will be referred to by their first name.Clermont CA2 0 2 3

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- 3

- EMS was dispatched for a patient with abnormal behavior and was directed to stage near

the Huelsman residence. Deputy Walsh separately responded to the Huelsman residence.

{¶ 4} Gregory arrived first and was admitted into the home where he found Cheryl

sitting on the couch and Jack sitting in a recliner

. Cheryl was upset and crying ; Jack was

calm

. Seeing no signs of physical injury, Gregory advised EMS to stand down. Cheryl

advised Gregory that Jack was paranoid

, hearing voices

, and accusing her of causing his

el ectronic devices to stop working. Jack explained that he was not hearing voices

, that he

had heard someone talking about politics

, and that he eventually realized a radio was on.

Jac k confirmed that his electronics were not working properly, and Cheryl was unable to

confirm this one way or the other. Gregory advised Cheryl that based upon their

conversation, he was not going to remove Jack from the house. Cheryl advised Gregory

that Jack was completely out of his mind

, that this was not his normal behavior

, and that

contrary to Gregory's belief, this was not a domestic dispute but a mental health crisis

.

During their interaction, Cheryl informed Gregory that all the firearms were locked up and

that only she had access to them.

{¶ 5} Because Cheryl and Jack were becoming upset with one another, Gregory

believed it best that they be separated. Gregory had Cheryl step out of the house. On t he

porch

, Cheryl told Gregory multiple times that Jack needed to go to a hospital and should

not be left alone but did not explain why. Cheryl was distraught and difficult to understand.

Gregory advised her that he did not have enough probable cause to remove Jack from their

home and transport him to the hospital. Cheryl then told Gregory that Jack was suicidal.

Upon hearing Cheryl, Jack yelled from the house that all he said was that if he ever killed

himself

, Cheryl could not afford to live in the house. Cheryl confirmed that Jack had made

the statement and told Gregory that the statement w as a suicidal threat. Gregory did not

construe it as such. Gregory and Cheryl then walked away from the house out of Jack'sClermont CA2 0 2 3

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- 4

- earshot. Cheryl was very emotional and sobbing uncontrollably.

{¶ 6} Deputy Walsh arrived while Gregory was outside on the porch speaking with

Cheryl. Walsh stayed outside with Cheryl while Gregory returned inside the home to speak

with Jack. Jack told Gregory that he was upset Cheryl had taken and locked up all his

firearms and hidden the keys. Jack further stated that Cheryl had taken his car keys and

driver's license

, "basically taking away his freedom." Jack expressed his belief that Cheryl

was " trying to do everything she could to get him locked up, put away, out of the house."

Gregory believed Jack to be calm, rational, and composed during this conversation. Based

upon J ack 's demeanor, inflection, and conduct

, Gregory did not consider Jack to be suicidal

.

{¶ 7} Meanwhile, Cheryl advised Walsh that all of the firearms had been hidden or

locked up. Cheryl also stated that she could not leave because she believed Jack would

kill himself if she did

. According to Walsh

, Cheryl never asked that Jack not be left alone

and further stated she had not heard Jack make any threats to harm himself

. Cheryl was

extremely upset while talking to Walsh because she wanted Jack to be taken to a hospital

.

Upset and frustrated, Cheryl eventually threw her hands up and walked away.

{¶ 8} The Deputies subsequently consulted with one another and determined that

based upon their respective conversations with the Huelsmans, they did not have probable

cause to transport Jack to a hospital because they had no reason to believe Jack was a

danger to himself or others. Walsh left shortly thereafter to respond to a " non

- breather "

call. Gregory returned to his patrol car and contacted his supervisor for authorization to call

Mobile Crisis, a mental health service, to respond to the scene and speak with the

Huelsmans. Gregory then returned to the house and advised Jack that Mobile Crisis was

on its way to talk to him. Jack informed Gregory that he had terminal cancer and that Cheryl

was his nurse.

{¶ 9} Gregory went back outside, where he observed Cheryl "crying uncontrollably"Clermont CA2 0 2 3

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- 5

- kneeling down by a tree, and took a follow

- up call from Mobile Crisis inside his patrol car.

From the car, Gregory observed Jack walk out onto the porch and look around for a few

minutes before walking back into the house. While Gregory was inside his car writing down

the Huelsmans' information, Jack shot and killed himself. 2

{¶ 10} On August 22, 2017, Sarah, as administrator of Jack's estate, and Cheryl filed

a complaint in in the United States District Court for the Southern District of Ohio against

the Deputies

, a sserting federal and state claims. The district court granted summary

judgment in favor of the Deputies on all claims. Wilson v. Gregory

, 491 F.Supp.3d 299

(S.D.Ohio 2020). In particular, the district court found that the Deputies were entitled to

immunity under R.C. 2744.03(A)(6) on the state claims. On appeal, the Sixth Circuit Court

of Appeals affirmed the grant of summary judgment on the federal claims but reversed the

district court' s grant of summary judgment on the state claims, finding there were genuine

issues of material fact regarding whether the Deputies acted recklessly and were entitled

to statutory immunity

. Wilson v. Gregory

, 3 F.4th 844 (6 th Cir.2021). The Sixth Circuit

remanded the case to the district court

. On remand, the district court declined to exercise

jurisdiction on the state claims and dismissed them without prejudice. Wilson v. Gregory

,

S.D.Ohio No. 1:17 CV 554, 2021 U.S. Dist. LEXIS 155609 (Aug. 18, 2021).

{¶ 11} On October 27, 2021, Sarah, as administrator of Jack ' s estate, and Cheryl

filed a complaint in the Clermont County Court of Common Pleas against the Deputies and

an amended complaint two months later

. Both complaints asserted claims for

negligence/reckless conduct

, wrongful death

, intentional infliction of emotional distress

, and

negligent infliction of emotional distress. The Deputies moved for summary judgment

,

2

. In her deposition, Cheryl testified that of the numerous firearms Jack possessed, all but three handguns

were locked in gun safes. In 2013 and 2014, s he had found two of the handguns under Jack's pillow and had

hidden them . The third handgun was partially taken apart because Jack was working on it; it was kept in the

drawer of a side table sitting next to Jack's recliner. Cheryl testified she did not realize at the time that the

handgun was operational.Clermont CA2 0 2 3

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- arguing they were entitled to statutory immunity under R.C. 2744. 03(A)(6) (b)

. In her

memorandu m opposi ng summary judgment, Cheryl argued that the Deputies were

collaterally estopped from relitigating the issue of recklessness because the issue had

already been determined in the federal court action. 3

{¶ 12} On May 30, 2023, the trial court granted summary judgment in favor of the

Deputies

, holding that " reasonable minds can come to only one conclusion: that there is no

evidence the defendants acted in a reckless manner. " T he trial court declined to apply the

doctrine of collateral estoppel

, finding that Cheryl had not proven two elements of the

doctrine because the court could not take judicial notice of the record in the federal litigation.

{¶ 13} Cheryl now appeals, raising one assignment of error:

{¶ 14} THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT.

{¶ 15} Cheryl argues that the trial court erred in granting summary judgment to the

Deputies

, raising two issues for review. In her first issue for review, Cheryl challenges the

trial court's finding that collateral estoppel does not app ly to bar t he Deputies from

relitigating the issue of recklessness. In her second issue for review, Cheryl challenges the

trial court's finding that the Deputies did not act in a reckless manner.

{¶ 16} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently and without deference to the decision of the trial court.

Flagstar Bank, FSB v. Sellers

, 12th Dist. Butler No. CA2009

- 11

- 287, 2010

- Ohio

- 3951, ¶ 7.

The appellate court examines the evidence available in the record, including deposition or

hearing transcripts, stipulated exhibits, and the pleadings, and determines whether

summary judgment is appropriate. Smathers v. Glass

, Slip Opinion No. 2022

- Ohio

- 4595,

3 . In her memorandum opposing summary judgment, Cheryl abandoned her claim of negligent infliction of

emotional distress and her claims that the Deputies acted maliciously, in bad faith, or in a wanton manner.Clermont CA2 0 2 3

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- ¶ 30; Civ.R. 56 (C). Summary judgment is proper when there is no genuine issue of material

fact remaining for trial, the moving party is entitled to judgment as a matter of law, and

reasonable minds can only come to a conclusion adverse to the nonmoving party,

construing the evidence most strongly in that party's favor. See Civ.R. 56(C); Harless v.

Willis Day Warehousing Co.

, 54 Ohio St.2d 64, 66 (1978).

II. ANALYSIS

A. C ollateral E stoppel

{¶ 17} Under her first issue for review, Cheryl argues that the trial court erred in

declining to apply collateral estoppel. Cheryl asserts that the trial court improperly granted

summary judgment to the Deputies on a ground not raised in the Deputies ' motion for

summary judgment

, i.e., judicial notice

. Cheryl further asserts that the Sixth Circuit's

reversal of the district court's grant of summary judgment in favor of the Deputies was a

" final judgment on the merits " on the issue of the Deputies' entitlement to statutory immunity

based upon recklessness, thereby barring the Deputies from relitigating the issue of

recklessness

.

{¶ 18} The doctrine of res judicata is composed of two concepts: claim preclusion,

also referred to as "estoppel by judgment," and collateral estoppel, also referred to as "issue

preclusion." Ginn v. Stonecreek Dental Care

, 12th Dist. Fayette No. CA2016

- 10

- 014

, 2017

-

Ohio

- 4370, ¶ 24

. Collateral estoppel prevents parties or their privies from relitigating facts

and issues in a subsequent suit that were fully litigated in a prior suit. Thompson v. Wing

,

70 Ohio St.3d 176, 183, 1994

- Ohio

- 358. " Collateral estoppel applies when the fact or issue

(1) was actually and directly litigated in the prior action, (2) was passed upon and

determined by a court of competent jurisdiction, and (3) when the party against whom

collateral estoppel is asserted was a party in privity with a party to the prior action ." Id. To

successfully assert collateral estoppel, a party must plead and prove the following elements:Clermont CA2 0 2 3

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- (1) The party against whom estoppel is sought was a party or in

privity with a party to the prior action;

(2) There was a final judgment on the merits in the previous

case after a full and fair opportunity to litigate the issue;

(3) The issue must have been admitted or actually tried and

decided and must be necessary to the final judgment; and

(3) The issue must have been identical to the issue involved in

the prior suit.

Ginn at ¶ 24

. A state court may apply collateral estoppel when an issue has previously

been decided in a federal court involving the same parties or their privies. State v. Ross

,

4th Dist. Summit No. 26694, 201 4

- Ohio

- 2867, ¶ 22.

{¶ 19} " ' Offensive collateral estoppel ' occurs when a plaintiff seeks to foreclose a

defendant from litigating an issue the defendant has previously litigated unsuccessfully in a

prior action. " Wilson v. Hatter

, 12th Dist. Warren Case No. CA85

- 04

- 014, 1986 Ohio App.

LEXIS 7297, *7

- 8 (June 23, 1986)

, citing Parklane Hosiery Co., Inc. v. Shore (1979), 439

U.S. 322, 99 S.Ct. 645 (1979). Caution must be exercised before permitting the use of

offensive collateral estoppel

. Id.

1. Judicial Notice

{¶ 20} T he trial court declined to apply collateral estoppel

, finding that Cheryl had not

proven the doctrine's second and third elements because the court could not take judicial

notice of the record in the federal litigation. The issue of judicial notice was never raised in

the Deputies' motion for summary judgment. Cheryl argues that the trial court erred in

declining to apply collateral estoppel on a ground not raised in the Deputies' motion for

summary judgment thereby denying Cheryl a n opportunity to respond.

{¶ 21} "A party seeking summary judgment must specifically delineate the basis

upon which summary judgment is sought in order to allow the opposing party a meaningful

opportunity to respond." Mitseff v. Wheeler

, 38 Ohio St.3d 112 (1988), paragraph one ofClermont CA2 0 2 3

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- 9

- the syllabus. The moving party must state with particularity the areas of the opposing party's

claim that do not raise a genuine issue of material fact and such assertion may be supported

by evidence as allowed by Civ.R. 56(C). Id. at 115. Generally, a trial court may not sua

sponte grant summary judgment upon grounds not raised by the prevailing party. Marshall

v. Aaron

, 15 Ohio St.3d 48, 50

- 51 (1984). However, a trial court does not deprive a party

of a meaningful opportunity to respond where the party has notice of an issue. Total Quality

Logistics, L

. L

. C

. v. Red Chamber Co.

, 12th Dist. Clermont No. CA2016

- 09

- 062, 2017

- Ohio

4369, ¶ 9

.

{¶ 22} Res judicata, and th erefore its collateral estoppel subcategory

, is an

affirmative defense under Civ.R. 8(C). See Calin v. Nemes

, 7th Dist. Mahoning No. 11 MA

12, 201 2

- Ohio

- 1409. While a party moving for summary judgment has the burden to prove

its case, it does not have the burden to address, negate, or disprove the nonmoving party's

affirmative d e fenses

. Todd Dev. Co., Inc. v. Morgan

, 116 Ohio St.3d 461, 2008

- Ohio

- 87, ¶

13, 23. The Deputies' motion for summary judgment did not anticipatorily argue that

collateral estoppel did not apply. On the contrary, Cheryl introduced the doctrine of

collateral estoppel in her memorandum in opposition to the Deputies' motion for summary

judgment

. Pursuant to Todd and Civ.R. 56(E), it was Cheryl's obligation to do so because

" an adverse party may not rest upon the mere allegations or denials of the party's pleadings,

but the party's response, by affidavit or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. "

{¶ 23} " Judicial notice concerns a court's acceptance, ' for purpose of convenience

and without requiring a party['s] proof, of a well

- known and indisputable fact[.] ' " Charles v.

Conrad

, 10th Dist. Franklin No. 05AP

- 410, 2005

- Ohio

- 6106, ¶ 26

. A trial court cannot take

judicial notice of court proceedings in another case, and may not take judicial notice of prior

proceedings in the court even if the same parties and subject matter are involved; a courtClermont CA2 0 2 3

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- 10

- may only take judicial notice of the proceedings in the immediate case. Mansour v.

Croushore

, 194 Ohio App.3d 819, 2011

- Ohio

- 3342, ¶ 18 (12th Dist.). The rationale for the

rule is that the appellate court cannot review the propriety of the trial court's reliance on

such prior proceedings because that record is not before the appellate court. Id. "The

taking of judicial notice involves consideration of evidence outside the complaint." Lansing

v. Hybud Equip. Co.

, 5th Dist. Stark No. 2002CA00112, 2002

- Ohio

- 5869, ¶ 16.

" Consideration of evidence taken by judicial notice is not enumerated in Civ.R. 56(C)." Id.

at ¶ 17.

{¶ 24} The trial court did not err in sua sponte rais ing the issue of judicial notice. The

trial court found that the Sixth Circuit's decision did not satisfy the second and third elements

of collateral estoppel because to make such a determination require d a review of the record

in the federal litigation which was not properly before the trial court. The trial court noted

that each party represented what happened in the federal litigation and sought, improperly

,

to file Cheryl's federal complaint and a website link for the oral arguments before the Sixth

Circuit without complying with Civ.R. 56(C)

. In other words, the parties improperly sought

to submit filings and evidence from the federal proceedings in their summary judgment

pleadings

. Because the trial court could not take judicial notice of another court's

proceedings

, the trial court properly found it c ould not take judicial notice of the parties'

representations or the record before the federal courts

.

{¶ 25} Furthermore, contrary to Cheryl's assertion, the trial court did not grant

summary judgment to the Deputies on a ground not sought by them. Rather, the trial court

found that Cheryl had failed to prove the necessary elements for collateral estoppel to apply.

Cheryl had notice of the issue of collateral estoppel because she raised it.

2. Whether Collateral Estoppel Applies

{¶ 26} In the federal litigation, the district court granted summary judgment in favorClermont CA2 0 2 3

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- 11

- of the Deputies, finding that there was no genuine issue of material fact that the Deputies

had acted recklessly

, and that the Deputies were immune from liability upon the state claims

under R.C. Chapter 2744. The Sixth Circuit reversed the district court's grant of summary

judgment on the state claims, finding that genuine issues of material fact remained

regarding whether the Deputies acted recklessly and were entitled to statutory immunity. In

reversing the grant of summary judgment, the Sixth Circuit also found that the district court

applied an improper standard for recklessness by conflating deliberate indifference and

recklessness.

{¶ 27} In the case at bar, the trial court declined to apply collateral estoppel as

follows:

The Civ.R. 56 evidence before the court does not include

essential portions of the record from [the federal litigation], and

therefore the plaintiffs have not established that all four

requirements for collateral estoppel are satisfied

. The court

cannot evaluate whether there was a final judgment on the

merits in [the federal litigation] after a full and fair opportunity to

litigate the issue of recklessness for sovereign immunity, nor

can the court determine whether recklessness was admitted or

actually tried and decided and was necessary to the final

judgment. As the Ohio Supreme Court stated, " an absolute due

process requisite to the application of collateral estoppel is that

the party asserting the preclusion must prove that the identical

issue was actually litigated, directly determined, and essential

to the judgment in the prior action." [quoting Goodson v.

McDonough Power Equipment, Inc.

, 2 Ohio St

. 3d 1 93, 201

(1983)]

.

{¶ 28} Cheryl argues that the trial court erred in declining to apply collateral estoppel.

Cheryl a sserts that the Sixth Circuit ' s reversal of the district court's grant of summary

judgment is a final judgment on the merits of the federal case after the Deputies had a full

and fair opportunity to litigate the issue, thereby satisfying collateral estoppel 's second

element. Cheryl further a sserts that the Sixth Circuit decided the issue of the Deputie s'

entitlement to statutory immunity under R.C. Chapter 2744 and that the Sixth Circuit'sClermont CA2 0 2 3

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- 12

- decision was necessary to the final judgment, thereby satisfying collateral estoppel's third

element.

{¶ 29} The reversal of the district court ' s grant of summary judgment to the Deputies

on state law statutory immunity is not a " final judgment on the merits " as required by the

second element of collateral estoppel. The merits of the Deputies' immunity claim remain

unresolved because the Sixth Circuit only held that there were genuine issues for trial

regarding whether the Deputies were entitled to immunity. In other words, the Sixth Circuit

did not find that the Deputies acted recklessly and that they were not entitled to immunity

under R.C. Chapter 2744

. Rather, the Sixth Circuit reversed the grant of summary judgment

to the Deputies

, finding genuine issues of material fact remained regarding whether the

Deputies acted in a reckless manner and were entitled to statutory immunity

. Because each

of these issues may ultimately be resolved in the Deputies' favor after a trial

, t he Sixth

Circuit 's reversal is not a final judgment on the merits. For the same reasons, the issues of

recklessness and statutory immunity were not "actually tried and determined

, " that is

conclusively determined

, i n the federal litigation

, as required by the third element of

collateral estoppel.

{¶ 30} In oral argument, Cheryl suggested that the Sixth Circuit ' s reversal of the

d istrict c ourt ' s grant of summary judgment is a final judgment on the merits because R.C.

2744.02(C) provides that " [a]n order that denies a political subdivision or an employee of a

political subdivision the benefit of an alleged immunity from liability as provided in this

chapter or any other provision of the law is a final order. " R.C. 2744.02(C) is inapplicable

because

, as discussed above, the Sixth Circuit did not deny the Deputies immunity under

R.C. Chapter 2744, but held only that there were genuine issues of material fact as to

whether the Deputies were entitled to state law immunity. The case was then remanded to

the district court which declined to exercise supplemental jurisdiction and dismissed theClermont CA2 0 2 3

- 06

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- 13

- state law claims without prejudice. In leaving the state law claims for state adjudication

, the

district court specifically noted that "a core defense " to the remaining claims involve d Ohio

statutory immunity for law enforcement officer s, "an evolving topic of law."

{¶ 31} In light of the foregoing

, we find that collateral estoppel was not applicable

and the trial court did not err in declining to apply the doctrine

.

B. R ecklessness

{¶ 32} Under her second issue for review, Cheryl argues that the trial court erred in

finding that the Deputies' conduct wa s not reckless because (1) the trial court applied the

wrong definition of recklessness for purposes of R.C. 2744.03(A)(6), and (2) there were

genuine issues of material fact regarding whether the Deputies acted reckless ly

.

1. T he R ecklessness S tandard

{¶ 33} T he Deputies argued they were entitled to statutory immunity under R.C.

2744.03(A)(6)(b). That statute provides immunity to an employee of a political subdivision

unless " [t] he employee ' s acts or omissions were with malicious purpose, in bad faith, or in

a wanton or reckless manner ." Demonstrating "wanto nness" or "recklessness" is subject

to a high standard. Pressler v. Franklin

, 12th Dist. Warren No. CA2016

- 06

- 050, 2017

- Ohio

1408, ¶ 12. Thus, although the determination of wantonness or recklessness is typically

within the province of the jury, summary judgment is appropriate in instances where there

is no evidence that the employees "acted * * * in a wanton or reckless manner." Id.

{¶ 34} In its decision, the trial court applied a definition of recklessness that included

a "pervers e disregard of a known risk." Cheryl argues that the trial court erred in applying

a definition of recklessness that the Ohio Supreme Court has rejected in Anderson v.

Massillon

, 134 Ohio St.3d 380, 2012

- Ohio

- 5711

.

{¶ 35} In 1990, the O hio Supreme Court adopted the definition of recklessnessClermont CA2 0 2 3

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- 14

- articulated by 2 Second Restatement of the Law 2d, Torts, Section 500 (1965)

. Id. at ¶ 29. 4

In O'Toole v. Denihan

, 118 Ohio St.3d 374, 2008

- Ohio

- 2574, the supreme court provided

the definition of reckless ness from the Restatement

, and then defined recklessness as "a

perverse disregard of a known risk" and "a disposition to perversity." Id. at ¶ 73, 75.

{¶ 36} In Anderson

, the supreme court addressed the confusion that had arisen

about its prior definitions of the terms "wanton," " wi llful," and "reckless." The court held that

the terms described different and distinct degrees of care and were not interchangeable.

Anderson

, 2012

- Ohio

- 5711 at ¶ 31. In reviewing its prior definitions, the court noted that it

had "abandoned 'disposition to perversity' as an element of the definition of wanton

misconduct" in 1977. Id. at ¶ 28. The court then defined recklessness as "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 ¶ 34. The Anderson opinion did not overrule O'Toole or reject the O'Toole definition

of recklessness as involving perversity

.

{¶ 37} F ollowing Anderson

, the supreme court has continued to use the phrase

"perverse disregard of a known risk" when defining recklessness pursuant to R.C.

2744.03(A)(6)(b). In A.J.R. v. Lute

, 163 Ohio St.3d 172, 2020

- Ohio

- 5168, the issue before

the court was whether a teacher and school officials acted recklessly regarding reports that

a kindergartener was b ullied. After citing the definition of recklessness from both O'Toole

and Anderson

, the court held that because the teacher and school officials " did not

perversely disregard a known risk, appellants could not have been reckless, and the trial

court correctly granted [their] motion for summary judgment ." Id. at ¶ 27; see also id. at ¶

4 . The Restatement provides that " [t] he actor's conduct is in reckless disregard of the safety of another if he

does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason

to know of facts which would lead a reasonable man to realize, not only that his conduct creates an

unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which

is necessary to make his conduct negligent. "Clermont CA2 0 2 3

- 06

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- 15

- 1, 22, and 29 (finding that the teacher and school officials "did not act in perverse disregard

of a know n risk" and "did not perversely disregard" a known risk). Two years later, the

supreme court once again defined recklessness with references to both the O'Toole and

Anderson definitions. Smathers

, 2022

- Ohio

- 4595 at ¶ 33.

{¶ 38} In light of the foregoing, we find that the definition of recklessness pursuant to

R.C. 2744.03(A)(6)(b) continues to include a perversity component

. The trial court,

therefore, did not err in defining recklessness as a "perverse disregard of a known risk."

2. W hether the D eputies A cted in a R eckless M anner

{¶ 39} Cheryl argues that summary judgment was improper because a genuine issue

of material fact exists regarding whether the Deputies' conduct was reckless. Specifically,

Cheryl asserts that the Deputies unreasonably disregarded the risk of suicide to Jack when

Greg ory advised EMS to stand down, Walsh left the scene and left Jack alone, and Greg ory

isolated Jack alone in his home

.

{¶ 40} In order to find that the Deputies were reckless, " we must determine that they

were ' conscious that their conduct would in all probability result in injury. '" A.J.R.

, 2020

-

Ohio

- 5168 at ¶ 23, quoting O'Toole

, 2008

- Ohio

- 2574 at paragraph three of the syllabus.

" In other words, for their conduct to have been reckless, [they] must have been more than

negligent in regard to the risk; they must have displayed a 'conscious disregard of or

indifference to' the risk of physical harm to [Jack] 'that [was] unreasonable under the

circumstances.'" Id.

, quoting Anderson

, 2012

- Ohio

- 5711 at paragraph four of the syllabus.

{¶ 41} W e find that the Deputies did not engage in reckless conduct because there

is no evidence in the record that they consciously disregarded or were indifferent to a known

or obvious risk of harm to Jack. The Deputies were aware they were responding to a mental

health call regarding an individual who was hearing voices and had access to firearms.

Once the Deputies arrived, Cheryl told Greg ory that Jack was suicidal based on Jack'sClermont CA2 0 2 3

- 06

- 039

- 16

- earlier statement

. She also told Walsh that she could not leave because she believed Jack

would kill himsel f, and that she had not heard Jack make any threats to harm himself. In

investigating the situation, the Deputies asked Cheryl several questions in an attempt to

determine whether Jack had tried or threatened to harm himself. Cheryl was distraught and

sobbing while interacting with the Deputies

, was difficult to understand

, and was unable to

articulate why she was upset

. By contrast, although Jack became annoyed and agitated

with Cheryl, his demeanor remained calm

, he denied threatening to harm himself, and h e

provided logical and sufficient answers to Gregory

. Gregory's in teractions with Jack did not

indicate Jack was a suicide risk. Nevertheless, Gregory sought to have Mobile Crisis

respond to further assess the situation. The Deputies were further advised by both Jack

and Cheryl that the firearms in the house were either secured or hidden and that only Cheryl

had access to them. At no point did Jack or Cheryl indicate that a firearm was not secure

or was accessible to Jack. T he Deputies' observations at the scene did not corroborate

concerns that Jack was suicidal and the Deputies were not reckless in how they proceeded

at the scene. T h us, th ere is no evidence that the Deputies knew that their actions would in

all probability result in injury. There was no perverse disregard of a known risk

.

{¶ 42} Cheryl argues that the trial court erred in failing to accept the facts in the light

most favorable to her when it disregarded the opinion of her expert

. The expert's opinion

stated that the Deputies disregarded the obvious risk that Jack would commit suicide or

engage in acts of self

- harm and that their conduct was unreasonable under the

circumstances. However, an expert opinion that the conduct of a political subdivision

employee was reckless under R.C. 2744. 03(A)(b)(6) is an improper legal conclusion that

should not be included in an affidavit used to show a genuine issue of material fact. Seege

v. Smith

, 2d Dist. Montgomery No. 26210, 2014

- Ohio

- 5450, ¶ 34; Fediaczko v. Mahoning

Cty. Children Servs.

, 7th Dist. Mahoning No 11 MA 186, 201 2

- Ohio

- 6090, ¶ 30.Clermont CA2 0 2 3

- 06

- 039

- 17

- Furthermore

, "just because a plaintiff can find an expert to state in an affidavit that an act

was reckless does not mean that there is a genuine issue for trial as to whether the

defendant lost [his or her] immunity due to recklessness." Seege at ¶ 35; Fediaczko at ¶

31.

{¶ 43} After reviewing the record de novo and in a light most favorable to Cheryl, we

conclude that no genuine issue as to any material fact remains to be litigated and that the

Deputies are entitled to judgment as a matter of law because there is no evidence the

Deputies acted in a reckless manner and Cheryl abandoned her claim that the Deputies

acted maliciously, in bad faith, or in a wanton manner

. T he Deputies are entitled to immunity

under R.C. 2744.03(A)(6)(b) and to summary judgment.

III. CONCLUSION

{¶ 44} In light of the foregoing, the trial court did not err in granting summary

judgment in favor of the Deputies

. The assignment of error is overruled.

{¶ 45} Judgment affirmed.

S. POWELL

, P.J., and BYRNE

, J., concur.