[Cite as Estate of Fleenor v. Ottawa Cty., 2021-Ohio-2251.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

OTTAWA COUNTY 

Estate of Jennings Fleenor Court of Appeals No. OT-20-023 

 

 Appellant Trial Court No. 2018CV238 

v. 

County of Ottawa DECISION AND JUDGMENT

Appellee Decided: June 30, 2021 

* * * * * 

 William B. Eadie and Michael A. Hill, for appellant. 

 Teresa L. Grigsby and Jennerifer A. McHugh, for appellee. 

* * * * * 

MAYLE, J. 

{¶ 1} Plaintiff-appellant, the Estate of Jennings Fleenor, appeals the September 3, 

2020 judgment of the Ottawa County Court of Common Pleas, granting summary 

judgment in favor of defendant-appellee, the County of Ottawa, d/b/a Ottawa County 

Riverview Nursing Home. For the following reasons, we reverse.
2. 

I. Background 

A. Factual Background 

{¶ 2} Jennings Fleenor was a 77-year-old man who resided at Ottawa County 

Riverview Nursing Home. On the evening of July 29, 2016, nurse aide, T.M., was 

preparing to shower Fleenor, a bilateral leg amputee who also suffered from dementia, 

diabetes, peripheral vascular disease, among other conditions. She and another aide used 

a Hoyer lift to transfer him from his wheelchair to a rollable shower chair. Once in the 

shower chair, T.M. situated herself facing Fleenor and began pushing the chair into the 

shower when it tipped backwards. T.M. grabbed the arms of the chair in an effort to stop 

it from falling, but the arms were wet and slippery and she could not stop it. She “held 

[Fleenor] as much as [she] could, with [her] knees braced,” preventing the chair from 

slamming down, but ultimately, Fleenor landed on the tile floor still in the chair. 

According to T.M., Fleenor realized that he was falling and lifted his head in anticipation 

of the fall, preventing his head from hitting the ground. 

{¶ 3} T.M. called for help and nurse, K.N., entered the shower room to assist. She 

got down on the floor to assess Fleenor. She asked if he had hit his head and he said no. 

She took his blood pressure, which was a little high, “looked him over, checked his 

strength, looked at his eyes, [and] checked his head.” She observed some redness on his 

shoulders from where his shoulders were lying against the shower chair, but observed no 

other injuries and her assessment was otherwise negative. K.N., T.M., and another aide 

lifted Fleenor off the floor. 
3. 

{¶ 4} Fleenor’s physician was notified of the fall and a voice mail was left for 

Fleenor’s son, alerting him to the fact that his father had fallen. The nursing staff 

performed regular neurological checks over the next 13 hours and completed 72-hour 

post-fall check sheets. Fleenor’s vital signs were checked frequently during that time. 

His blood pressure normalized during the night, the redness on his shoulders resolved, 

and the neurological checks remained negative. Fleenor reported pain in his back and 

neck, and Norco was administered and noted to be effective. 

{¶ 5} On August 2, 2016, Fleenor was referred to occupational therapy for “OT 

intervention for [wheelchair] positioning” because of staff concerns that he would “slide 

out of [his wheelchair].” He was seen by occupational therapist, M.W., on August 3, 

2016, for “modifications to [wheelchair] headrest with new rest constructed and mounted 

for appropriate fit.” At that time, M.W. noted in her chart that Fleenor had “poor 

alertness with nursing staff stating [that he] fell over [the] weekend.” 

{¶ 6} The next morning, August 4, 2016, at 5:10 a.m., Fleenor was observed to be 

diaphoretic. By 6:30 a.m., he was unresponsive to verbal and physical stimuli. He died 

at 6:45 a.m. No autopsy was performed; his death certificate lists his manner of death as 

natural, the immediate cause of his death as end-stage dementia, and other significant 

contributing conditions as peripheral vascular disease and coronary artery disease. 

Fleenor’s body was cremated. 

 
4. 

B. The Complaint 

{¶ 7} Fleenor’s estate filed an action against the County of Ottawa d/b/a Ottawa 

County Riverview Nursing Home, alleging negligence, wrongful death, and violations of 

R.C. 3721.13, Ohio Nursing Home Patients’ Bill of Rights (“residents’ rights”). It 

claimed that when Fleenor was dropped, he suffered severe injuries, and he was not sent 

to the hospital for medical care despite a documented physical and mental decline 

culminating in his death six days later. 

{¶ 8} In support of its negligence claim, the estate alleged that Riverview’s staff 

knew or should have known that it was unsafe to shower Fleenor using only a single aide; 

fail to provide adequate assistance in the shower; fail to have a properly installed, tested, 

and inspected shower chair; allow Fleenor to suffer skin breakdowns and falls; fail to 

provide adequate and timely care; fail to adequately and timely notify his family and 

doctor as to his condition and injuries; and fail to provide adequate treatment and care 

after Fleenor’s final fall. It further alleged that Riverview chose to provide too little 

nursing staff to ensure timely and adequate care to its residents, including Fleenor; it 

knew or should have known that its policy of understaffing created a dangerous 

environment for residents like Fleenor; it had a duty to—but chose not to—act reasonably 

in budgeting and providing funding to hire, train, and supervise staff to care for and assist 

residents like Fleenor; it had a duty to follow state and federal laws and regulations, the 

violations of which resulted in harm to Fleenor; and as a direct and proximate result of its 
5. 

negligence, Fleenor sustained permanent injury and loss, including conscious pain and 

suffering, disability, and death. 

{¶ 9} In support of its wrongful death claim, the estate alleged that as a result of 

the negligence previously described, Fleenor sustained physical injuries that caused his 

wrongful and untimely death; and Fleenor’s heirs and next of kin have suffered loss and 

damage as set forth in the Ohio wrongful death statute, including mental anguish and 

grief, medical and funeral expenses, and loss of Fleenor’s support, services, society, and 

companionship. 

{¶ 10} And in support of its claim for residents’ rights violations, the estate 

alleged that Riverview directly or through its employees violated Fleenor’s rights as a 

resident of the facility under R.C. 3721.13; these violations constitute negligence per se 

and give rise to a statutory action; and as a direct and proximate result of Riverview’s 

violations of R.C. 3721.13, Fleenor endured conscious pain and suffering, disability, and 

an untimely death. 

C. Summary Judgment 

{¶ 11} Riverview moved for summary judgment on all of the estate’s claims. It 

argued that (1) the estate cannot establish a breach of a duty to Fleenor or causation for 

purposes of its negligence, wrongful death, and residents’ rights claims; (2) its wrongful 

death claim was not brought in the name of the personal representative of the estate as 

required by R.C. 2125.02(A)(1); (3) Riverview is immune from liability under R.C. 
6. 

2744.01 et seq.; and (4) the estate failed to bring the action against an entity capable of 

being sued. 

{¶ 12} With respect to the “breach” element of the estate’s negligence and 

wrongful death claims, Riverview argued that it had no duty to prevent all falls, there was 

no evidence that T.M. caused the shower chair to tip, T.M. did her best to try to prevent 

and ultimately slow the fall, assessments were performed immediately after the fall, and 

it is mere conjecture whether the presence of a second aide would have prevented the fall. 

{¶ 13} With respect to the causation elements of the estate’s claims, Riverview 

argued, again, that there was no evidence that its employees caused the chair to tip and 

T.M. did her best to try to prevent injury to Fleenor. It also argued that there was no 

evidence that Fleenor hit his head or suffered a head injury; there was no evidence that 

Fleenor suffered a brain bleed or a subdural hematoma; there was no evidence that an 

undiagnosed brain bleed or subdural hematoma caused Fleenor’s death; and even if 

Fleenor had an undiagnosed brain bleed or subdural hematoma, there was no evidence 

that it was caused by his fall in the shower. 

{¶ 14} Respecting its claim of immunity, Riverview acknowledged that although it 

is a political subdivision under R.C. 2744.01(F) and its operation of the nursing facility 

constitutes a proprietary function under 2744.01(G)(1) generally rendering it immune 

from liability, an exception to immunity applies under R.C. 2744.02(B)(2) such that it 

may be liable “for injury, death, or loss to person or property caused by the negligent 

performance of acts by [its] employees with respect to proprietary functions of the 
7. 

political subdivision[].” It argued, however, that it is nevertheless immune from liability 

under R.C. 2744.03(A)(5) because Fleenor’s injury “resulted from the exercise of 

judgment or discretion in determining whether to acquire, or how to use, equipment, 

supplies, materials, personnel, facilities, and other resources” and there was no evidence 

that “the judgment or discretion was exercised with malicious purpose, in bad faith, or in 

a wanton or reckless manner.” 

{¶ 15} And respecting the estate’s failure to bring the action against an entity 

capable of being sued, Riverview maintained that it could only be held accountable via a 

lawsuit against the county’s board of commissioners.

{¶ 16} The estate responded that it had offered the opinions of expert witnesses, 

creating genuine issues of material fact as to whether the care rendered to Fleenor 

violated the standard of care and whether the injuries he sustained as a result of those 

violations caused his death. It argued that the trial court was obligated to construe this 

evidence in its favor. 

{¶ 17} With respect to Riverview’s claim of immunity, the estate maintained that 

(1) claims based on violations of the residents’ rights statute are themselves an exception 

to political subdivision immunity; (2) the discretion exercised here was unrelated to 

“whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, 

and other resources;” and (3) it properly alleged that Riverview acted recklessly, thereby 

negating the defense asserted by Riverview under R.C. 2744.03(A)(5). 
8. 

{¶ 18} And as to Riverview’s claim that the wrongful death claim was required to 

be brought in the name of the personal representative and the county was not an entity 

capable of being sued here, the estate argued that Riverview had not been prejudiced by 

these alleged errors and they are easily capable of being remedied under Civ.R. 15(A) by 

amending the complaint. It emphasized that the county had hired counsel to respond to 

the complaint, designated witnesses, participated in discovery, produced medical records, 

and made claims of attorney-client privilege, therefore, Riverview was not prejudiced and 

the estate should be permitted to amend the complaint to name the board of 

commissioners. The estate also pointed out that Riverview had filed suit in other cases 

seeking to collect facility fees and had done so as “Ottawa County d/b/a Ottawa County 

Riverview Nursing Home.” 

{¶ 19} Riverview replied that the estate’s expert witnesses had relied on 

inadmissible evidence in forming their opinions. It insisted that the admissible evidence 

demonstrates that no genuine issue of material fact exists. Riverview also denied that the 

estate had properly pled reckless conduct by Riverview employees. And it disputed the 

estate’s claim that it should be permitted to amend the complaint to sue in the name of the 

personal representative and to properly name the board of commissioners.

D. Trial Court Judgment 

{¶ 20} The trial court granted Riverview’s motion. It determined that the 

operation of Riverview, a county home, is a proprietary function, entitling it to political 

subdivision immunity under R.C. 2744.02(A)(1). It recognized that under R.C. 
9. 

2744.02(B)(2), a political subdivision may be liable for injury or death caused by the 

negligent performance of acts by its employees if none of the exceptions in R.C. 2744.03 

apply. But it found that such an exception does apply here—R.C. 2744.03(A)(5). 

{¶ 21} The court concluded that here, Riverview exercised discretion in creating 

and implementing Mr. Fleenor’s care plan. It further concluded that no evidence had 

been presented that Riverview exercised its discretion with malicious purpose, in bad 

faith, or in a wanton or reckless manner. It, therefore, found that Riverview was 

protected from liability by political subdivision immunity and was entitled to judgment as 

a matter of law. 

{¶ 22} The estate appealed. It assigns the following errors for our review. 

ASSIGNMENT OF ERROR NUMBER 1 

The Trial Court erred in granting summary judgment. 

ASSIGNMENT OF ERROR NUMBER 2 

The Trial Court erred in disregarding evidence of recklessness in the 

Defendant-Appellee’s staff disregarding Mr. Fleenor’s decline after his fall 

until his death. 

ASSIGNMENT OF ERROR NUMBER 3 

The Trial Court erred in adopting the moving-party (DefendantAppellee’s) facts and disregarding facts favoring Plaintiff-Appellant, 

construing facts in favor of the moving-party (Defendant-Appellee), and 

drawing inference in favor of the moving-party (Defendant-Appellee). 
10. 

II. Standard of Review 

{¶ 23} Appellate review of a summary judgment is de novo, Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same 

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is 

demonstrated: 

(1) that there is no genuine issue as to any material fact; (2) that the 

moving party is entitled to judgment as a matter of law; and (3) that 

reasonable minds can come to but one conclusion, and that conclusion is 

adverse to the party against whom the motion for summary judgment is 

made, who is entitled to have the evidence construed most strongly in his 

favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 

N.E.2d 46 (1978), Civ.R. 56(C). 

{¶ 24} When seeking summary judgment, a party must specifically delineate the 

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate 

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is 

made, an adverse party may not rest on mere allegations or denials in the pleadings, but 

must respond with specific facts showing that there is a genuine issue of material fact. 

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A 
11. 

“material” fact is one which would affect the outcome of the suit under the applicable 

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826, 

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

III. Law and Analysis 

{¶ 25} In its first assignment of error, the estate argues that the trial court erred in 

granting summary judgment to Riverview. In its second assignment of error, it argues 

that the trial court erred in disregarding evidence of the recklessness of Riverview’s staff 

in failing to take appropriate action in response to Fleenor’s decline following his fall. 

And in its third assignment of error, the estate argues that the trial court erred in adopting 

Riverview’s version of the facts and in construing the facts and drawing inferences in 

Riverview’s favor. The estate’s assignments of error are interrelated and will be 

discussed together.

A. The Immunity Analysis 

{¶ 26} The trial court dismissed all of the estate’s claims on one basis: political 

subdivision immunity. The court held—and the parties agree—that Riverview is a 

political subdivision engaged in a proprietary function but that R.C. 2744.02(B)(2) 

applies, potentially stripping it of its immunity. The estate adds that under R.C. 

2744.02(B)(5), its claim for residents’ rights violations provides another basis to strip 

 
12. 

Riverview of its immunity. The parties dispute whether R.C. 2744.03(A)(5) operates to 

reinstate immunity here, and it is that issue that is critical, initially, in resolving the 

estate’s appeal. 

{¶ 27} As the Ohio Supreme Court explained in Cramer v. Auglaize Acres, 113 

Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 14, “[d]etermining whether a political 

subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a threetiered analysis.” (Internal citations and quotations omitted.) Under the first tier, if the 

political subdivision is performing a governmental or proprietary function, it will 

generally be immune from liability. Id. Under the second tier, the court must determine 

whether any exceptions to immunity listed in R.C. 2744.02(B) apply, exposing the 

political subdivision to liability. Id. at ¶ 15. If any of those exceptions apply, under the 

third tier, the court must determine whether any of the defenses in R.C. 2744.03 apply, 

thereby reinstating political subdivision immunity. Id. at ¶ 16. 

{¶ 28} The court found that R.C. 2744.03(A)(5), in fact, provided a defense, 

thereby reinstating Riverview’s immunity. 

1. R.C. 2744.03(A)(5)

{¶ 29} Under R.C. 2744.03(A)(5), “[i]n a civil action brought against a political 

subdivision * * * to recover damages for injury, death, or loss to person or property 

allegedly caused by any act or omission in connection with a governmental or proprietary 

function, the following defenses or immunities may be asserted to establish nonliability * 

* *”: 
13. 

The political subdivision is immune from liability if the injury, 

death, or loss to person or property resulted from the exercise of judgment 

or discretion in determining whether to acquire, or how to use, equipment, 

supplies, materials, personnel, facilities, and other resources unless the 

judgment or discretion was exercised with malicious purpose, in bad faith, 

or in a wanton or reckless manner.

{¶ 30} The court found that the negligence alleged here arose from the exercise of 

discretion of Riverview’s employees in creating and implementing Fleenor’s care plan. It 

also found that there was no evidence that that discretion was exercised with a malicious 

purpose, in bad faith, or in a wanton or reckless manner. The estate challenges both of 

these conclusions. 

{¶ 31} As to the issue of discretion, the estate denies that the injury here arose 

from “the exercise of judgment or discretion in determining whether to acquire, or how to 

use, equipment, supplies, materials, personnel, facilities, and other resources.” It 

maintains that the nurse aide did not decide to tip Fleenor out of his chair, and the staff 

who identified significant changes in Fleenor’s condition in the following days—but who 

failed to chart their observations, tell Fleenor’s family doctor, or take him to the 

hospital—were not exercising discretion in determining how to use equipment or 

facilities. The estate insists that if R.C. 2744.03(A)(5) is interpreted to encompass 

“negligent care far outside the care plan,” this would result in de facto immunity for all 

nursing home negligence committed in county-owned nursing homes. 
14. 

{¶ 32} The Ohio Supreme Court addressed the issue of immunity of county-owned 

nursing homes in examining a claim for violations of residents’ rights under R.C. 

3721.13. In Cramer, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, plaintiff’s

decedent was a 71-year-old resident of Auglaize Acres, a county home created by the 

Auglaize County Board of County Commissioners. Two nurses employed by the home 

were helping him into bed using a Hoyer lift, when they apparently dropped him. 

Approximately five hours later, another nurse observed that the resident was in pain, his 

left leg and foot were swollen, and his leg was deformed above the knee. The resident 

was taken to the hospital, where he was diagnosed with a fractured left femur. He 

underwent surgery to repair the break, but died two days later.

{¶ 33} The resident’s estate filed a complaint against the home, the board of 

commissioners, and nurses employed by the home, alleging negligence, falsification of 

medical records, intentional infliction of emotional distress, residents’ rights violations, 

respondeat superior liability, and agency by estoppel. The defendants asserted the 

defense of governmental immunity and moved for summary judgment on this basis. 

{¶ 34} The home and the commissioners argued that they were immune from 

liability under the defenses available in R.C. 2744.03(A)(3) and (5), and the individual 

nurses argued that they were immune from liability under R.C. 2744.03(A)(6). The trial 

court granted summary judgment to the nurses on plaintiff’s negligence claim. It granted 

summary judgment to the home and the commissioners on plaintiff’s claim of intentional 

infliction of emotional distress and on the claims of negligence and violation of patient 
15. 

rights, but only insofar as punitive damages were sought. It denied the summary 

judgment motion in all other respects, finding that (1) the allegation of wanton and 

reckless conduct precluded the employees’ defense of immunity on the claim for 

intentional infliction of emotional distress, (2) R.C. 3721.17(I)(1) created a cause of 

action against the nurses for allegedly violating the resident’s rights, and (3) the home 

and the commissioners were not immune for their employees’ negligence. 

{¶ 35} Plaintiff appealed to the Third District Court of Appeals, challenging the 

trial court’s application of governmental immunity and the constitutionality of R.C. 

Chapter 2744. The court of appeals affirmed the granting of summary judgment to the 

home and commissioners on the claim for intentional infliction of emotional distress; it 

agreed that plaintiff could not collect punitive damages against the home or the 

commissioners; and it affirmed the holding that the nurses were not protected against 

intentional tort allegations. But the court of appeals held that the trial court erred in 

failing to grant summary judgment to the home and commissioners on plaintiff’s claims 

for the nurses’ intentional actions, in failing to consider a defense under R.C. 

2744.0[3](A)(5) that the nurses’ decisions in providing medical care were discretionary, 

and in holding that R.C. 3721.17(I)(1) imposed liability on the nurses for residents’ rights 

violations. 

{¶ 36} The Ohio Supreme Court accepted plaintiff’s request for a discretionary 

appeal and agreed to determine whether governmental immunity applies to unlicensed 

county nursing homes and its employees when they are sued for residents’ rights 
16. 

violations. Ultimately, the court held that R.C. 3721.17(I)(1) specifically grants a cause 

of action to residents of county nursing homes, including unlicensed homes, against a 

political subdivision for residents’ rights violations under the exception 

to immunity found in R.C. 2744.02(B)(5). It concluded, however, that R.C. 

3721.17(I)(1) does not expressly impose liability on the employees of 

a county nursing home under R.C. 2744.03(A)(6)(a). 

{¶ 37} After reaching these conclusions and acknowledging that both R.C. 

2744.02(B)(2) and (5) may operate as exceptions to the home and commissioners’ 

immunity, the Ohio Supreme Court explained that the next step in the analysis is to 

consider whether any defense under R.C. 2744.03 reinstates that immunity. 

{¶ 38} The plaintiff argued that as a matter of law, the defense in R.C. 

2744.03(A)(5) is not available because although the nurses had discretion to decide 

whether to use the Hoyer lift to put the resident in bed, once they decided to use the lift, 

there was no discretion left because there is only one method for using it. The plaintiff 

also contended that after the resident fell, the nurses failed to follow the home’s policy 

regarding falls. 

{¶ 39} The Ohio Supreme Court disagreed that the decision to use the Hoyer lift 

was the only discretionary act involved—it noted that the nurses’ treatment decisions 

were also discretionary. But it recognized that “the proper method for using the Hoyer 

lift and the issue of whether the nurses properly followed the home’s policy concerning 

patient falls” were disputed. Id. at ¶ 35. It determined that “[b]ecause there are material 
17. 

issues of fact as to whether the nurses acted maliciously, in bad faith, wantonly, or 

recklessly,” it cannot be concluded as a matter of law that R.C. 2744.03(A)(5) is 

inapplicable * * *.” Id. The court held that resolution of these questions was for the 

factfinder to decide. 

{¶ 40} Here, the estate’s claims revolve around whether Fleenor’s care plan 

required two people to roll his shower chair into the shower, whether the appropriate 

shower chair was used, whether appropriate care was rendered to Fleenor after the 

shower chair tipped backwards, whether staff took appropriate measures to have Fleenor 

evaluated, whether nursing notes reflected an accurate assessment of Fleenor’s condition 

in the days after his fall, and whether appropriate information was communicated to 

Fleenor’s physician and family. Based on the Ohio Supreme Court’s interpretation of 

R.C. 2744.03(A)(5), in regards to the estate’s allegations of merely negligent conduct, we 

are constrained to find that the actions of the nursing staff constitute exercises of 

judgment or discretion. Accordingly, Riverview can be held liable only to the extent that 

such judgment or discretion was exercised with malicious purpose, in bad faith, or in a 

wanton or reckless manner. 

2. Malicious Purpose, Bad Faith, or Wantonness and Recklessness 

{¶ 41} The estate maintains that it presented evidence that the county’s employees 

exercised their judgment or discretion in a manner that was reckless or wanton, thus 

rendering Riverview’s defense under R.C. 2744.03(A)(5) unavailable. It claims that it 

was reckless for T.M. to roll Fleenor into the shower backwards, knowing that he was top 
18. 

heavy due to the amputation of his legs. It also claims that two days before his death, as 

his brain injury worsened, Fleenor became less responsive and stopped all complaints of 

pain—a significant change in condition—yet the nursing staff failed to alert anyone or 

seek medical treatment. Instead, it contends, despite understanding the danger of falls 

and delayed head injuries, Riverview staff chose not to report this information to anyone 

who could help, tried to hide it by failing to document Fleenor’s worsening condition, 

then failed to report his death to the coroner. 

{¶ 42} The Ohio Supreme Court has considered the meaning of “reckless” and 

“wanton.” “Reckless conduct” is “characterized by the conscious disregard of or 

indifference to a known or obvious risk of harm to another that is unreasonable under the 

circumstances and is substantially greater than negligent conduct.” Anderson v. City of 

Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 33, reconsideration 

denied, 133 Ohio St.3d 1511, 2012-Ohio-6209, 979 N.E.2d 1289. “Wanton misconduct 

is the failure to exercise any care toward those to whom a duty of care is owed in 

circumstances in which there is great probability that harm will result.” Id. Issues 

regarding wanton or reckless behavior are generally questions presented to the jury unless 

the record lacks evidence demonstrating that the political subdivision employee acted in 

such a manner. Schoenfield v. Navarre, 164 Ohio App.3d 571, 2005-Ohio-6407, 843 

N.E.2d 234, ¶ 24 (6th Dist.); Price v. Telb, 6th Dist. Lucas No. L-08-1099, 2009-Ohio3496, ¶ 9. 
19. 

{¶ 43} To support its claim that Riverview’s staff acted recklessly and wantonly, 

the estate relies heavily on an August 2, 2016 referral to occupational therapy, an August 

3, 2016 note of occupational therapist, M.W., and M.W.’s testimony describing her 

observations and assessment of Fleenor. The estate maintains that the August 2, 2016 

referral and August 3, 2016 note demonstrate that Fleenor experienced a change in 

cognition caused by the fall in the shower chair. Riverview responds that M.W. lacked 

personal knowledge of the fall, she offered only inadmissible hearsay, her opinions were 

speculative, she was not designated as an expert medical witness, and she was asked to 

provide opinions to false hypotheticals that misrepresented the facts. It also maintains 

that the OT referral was made before the fall. 

{¶ 44} The occupational therapy records reveal that Fleenor—who used a tilt-inspace wheelchair equipped with a seatbelt—saw M.W. on August 2, 2016. At her 

deposition, M.W. explained that she received a request for an occupational therapy 

evaluation on August 2, 2016, for wheelchair positioning because the nursing staff was 

concerned that Fleenor was sliding out of his wheelchair. M.W. confirmed that this was a 

change from Fleenor’s prior condition. She was not told at that time that Fleenor had 

fallen backwards in his shower chair. M.W. charted that staff was reporting “increased 

trunk thrusting posteriorly with forward slide in [wheelchair].” She further indicated that 

Fleenor had “poor stability with [wheelchair] posture and ability to remain upright sit[.]” 

{¶ 45} Fleenor was seen for therapy by M.W. the following day. M.W. observed 

that his alertness was poor and he was having trouble keeping his head up. Again, she 
20. 

confirmed that in her experience with Fleenor, this was a new issue for him. M.W. 

commented about Fleenor’s poor alertness to the member of the nursing staff who 

brought him to her (whose identity she could not recall). That employee told M.W. that 

the reason Fleenor was not alert was because he had fallen. M.W. charted: “modification 

to [wheelchair] headrest with new rest constructed and mounted for appropriate fit. 

[Patient] with poor alertness with nursing staff stating [patient] fell over weekend.” 

{¶ 46} Riverview denies that “anyone ever said Fleenor’s poor alertness was 

‘because of’ the shower room incident.” But M.W.’s testimony makes clear that this is 

indeed what her note meant: 

Q: * * * You mount a headrest to help * * * him keep his head up, 

right? 

A: Correct. 

Q: Because he’s having trouble keeping his head up at this point? 

A: I indicate that, yes. 

Q: And then you identify that he is not at his normal level of

alertness? 

A: I identified his alertness as poor. 

Q: And you’re noting that because that’s not what you would expect 

from him? 

A: Correct. 
21. 

Q: So that’s a change in his condition that you thought was 

important to note? 

A: Yes. 

Q: And you either ask or the nursing staff volunteers an explanation 

for that; correct? 

A: Correct. 

Q: Do you remember who you were talking with about that? 

A: I do not. 

Q: Would you expect that if nursing staff is communicating with 

you about these types of things they would be documenting in their own 

notes? 

A: Yes. 

Q: And what do they communicate to you as to the explanation as to 

why Jennings Fleenor is not alert?

A: He fell.

(Emphasis added.) 

{¶ 47} So even if M.W.’s note did not specifically say that Fleenor had poor 

alertness because he fell, M.W. made clear at her deposition that this was exactly what 

she meant when she wrote the therapy note. Given this testimony, we cannot agree with 

Riverview that no one said Fleenor’s poor alertness was because of his fall. 
22. 

{¶ 48} Riverview also characterizes the statements made to M.W. as inadmissible 

hearsay. Riverview merely cites to Evid.R. 801 and 802 without citing any case law or 

explaining the basis for its argument, but it apparently takes issue with M.W. relaying the 

statement of the unnamed member of the nursing staff that Fleenor exhibited poor 

alertness due to his fall. We disagree with Riverview that the statement from this 

employee constituted inadmissible hearsay. Rather, we find that (1) the statement falls 

within the exception in Evid.R. 803(4) as a statement made for the purpose of medical 

diagnosis or treatment, and (2) the statement is non-hearsay under Evid.R. 801(D)(2) 

because it was an admission of a party-opponent. 

{¶ 49} Under Evid.R. 803(4) “[s]tatements made for purposes of medical

diagnosis or treatment and describing medical history, or past or present symptoms, pain, 

or sensations, or the inception or general character of the cause or external source thereof 

insofar as reasonably pertinent to diagnosis or treatment” are not excluded by the hearsay 

rule. In State v. Nasser, 10th Dist. Franklin No. 02AP-1112, 2003-Ohio-5947, ¶ 54, the 

Tenth District made clear that “Evid.R. 803(4) does not require that a statement made for 

medical purposes be made by the patient. * * * [S]tatements by others, most often close 

family members, may be received if the relationship or the circumstances give 

appropriate assurances.” Id., citing McKenna v. St. Joseph Hosp., 557 A.2d 854, 858 

(R.I.1989) (finding that unidentified “bystanders’ statements c[a]me within the exception 

embodied in Rule 803(4) [because they were] * * * statements * * * made by an 
23. 

individual to emergency personnel with no motive to fabricate or lie, describing with 

particularity a specific situation”). 

{¶ 50} Here, M.W. was attempting to render occupational therapy to Fleenor and 

the nursing staff—speaking for a resident who was unable to speak for himself—

provided information to M.W. concerning the general character of the cause or external 

source of Fleenor’s symptoms. This employee had no motive to fabricate or lie. The 

statement falls under Evid.R. 803(4). 

{¶ 51} In any event, the statement of the unidentified Riverview employee was not 

hearsay under Evid.R. 801(D)(2) because it was an admission by a party-opponent. See, 

e.g., Davis v. Sun Refining & Marketing Co., 109 Ohio App.3d 42, 53, 671 N.E.2d 1049 

(2d Dist.1996) (concluding that statement of unidentified employee concerning matter in 

the scope of his employment was not hearsay under Evid.R. 801(D)(2)). We, therefore, 

disagree that M.W.’s note and testimony—connecting Fleenor’s poor alertness to his 

fall—are barred as inadmissible hearsay. 

{¶ 52} Riverview also claims that M.W. was provided with false hypotheticals and 

her opinions were speculative. T.M. testified that when Fleenor’s chair tipped 

backwards, Fleenor was able to anticipate the fall and brace himself so that his head did 

not strike the tile floor. Counsel for the estate sought to determine if this was plausible. 

He asked M.W.—based on her familiarity with Fleenor through her treatment of him as 

an occupational therapist—if Fleenor was sitting in a shower chair, “and the whole chair 

 
24. 

tipped backwards,” whether it would be fair to say that he lacked the core strength and 

ability to prevent himself from falling backwards and to control his body to avoid hitting 

the ground. Based on her personal observations of Fleenor, M.W. opined that he lacked 

this strength and control. We would not characterize the hypotheticals posed to M.W. as 

“false,” nor would we discount her opinions as speculative. 

{¶ 53} As for M.W.’s lack of personal knowledge, the estate never claimed that 

M.W. possessed personal knowledge of the fall. Its examination of M.W. focused on her 

observations of Fleenor’s cognition on August 2-3, 2016, and tested the plausibility of 

T.M.’s description of the fall, specifically that Fleenor braced himself to protect against 

hitting his head as the shower chair tipped backwards. 

{¶ 54} In Cramer, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, the Ohio 

Supreme Court concluded that whether the employees who dropped the resident properly 

used the Hoyer lift and followed the home’s policy concerning patient falls presented 

disputed issues of material fact “as to whether the nurses acted maliciously, in bad faith, 

wantonly, or recklessly” under R.C. 2744.03(A)(5). Id. at ¶ 35. Here, in addition to 

issues raised concerning the appropriateness of one aide rolling Fleenor into the shower 

backwards, the estate also raised concerns about the staff’s response to the fall, the 

absence of charting, and the extent to which the staff may have observed—but ignored—

a significant change in condition indicative of a head injury. As in Cramer, we cannot 
25. 

say as a matter of law that Riverview’s nursing staff exercised its discretion in a manner 

that was not reckless or wanton.1

 This must be determined by the trier of fact. 

B. Causation 

{¶ 55} Riverview insists that even if its immunity defense fails, it is nonetheless 

entitled to summary judgment because the estate is unable to establish causation. 

Specifically, it argues that the estate cannot identify the cause of Fleenor’s fall or 

demonstrate that the fall caused his death. In connection with its position, Riverview 

contends that the estate’s medical experts’ opinions must be rejected because they are not 

supported by the evidence in the factual record, they disregard T.M. and K.N.’s 

testimony, and they are speculative. 

1. Cause of the Fall 

{¶ 56} Riverview insists that “when a plaintiff is unable to identify or explain the 

cause of a fall, the element of causation” fails. The estate responds that Riverview staff 

conceded at their depositions that a resident’s shower chair should not tip backwards 

while being rolled into the shower. It maintains that the cause of the fall was T.M.’s 

failure to control the shower chair in such a manner that it would not tip; the specific 

1

 Riverview also argues that the estate failed to allege recklessness. The estate did, in 

fact, allege recklessness at ¶ 19 of its complaint and identified evidentiary materials in its 

motion for summary judgment that it argued demonstrated recklessness. See Brannon v. 

Austinburg Rehab. & Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-5396, 943 N.E.2d 

1062 (11th Dist.), fn. 1 (finding that plaintiff preserved the question of an exception to 

governmental immunity when it alleged in its complaint that the defendant’s actions were 

performed in a “grossly negligen[t] manner and recklessly,” however, it failed to supply 

evidentiary materials demonstrating recklessness). 
26. 

reason for it tipping—a locked wheel, movement by Fleenor, pushing the chair too fast—

does not matter. We agree with the estate. Under the circumstances of this case, given 

that T.M. was in control of the shower chair when it tipped backwards and fell, it cannot 

be credibly disputed that her action or inaction caused the fall. It is of no matter that the 

precise mechanism of the fall is unexplained. 

{¶ 57} In reaching this conclusion, we find the cases cited by Riverview in support 

of its position—Miller v. Toledo Hosp., 6th Dist. Lucas No. L-16-1211, 2017-Ohio-2691, 

and McFarren v. Canton, 2016-Ohio-484, 59 N.E.3d 652, ¶ 82 (5th Dist.)—

distinguishable. 

{¶ 58} In Miller, a 77-year-old patient admitted to the hospital’s cardiac step-down 

unit fell, fracturing his right hip. He had been noted to have memory issues and was 

assessed to be at “high risk” for falls, thereby requiring hospital staff to implement fall 

precautions, including assigning him a room near the nurse’s station, leaving the door 

open, instructing him to call for assistance, providing assistance with transfers and 

ambulation, and considering the use of a bed alarm. One night, the patient fell. There 

was one nurse who witnessed the fall, but she died before providing a statement 

regarding the incident. She had charted: “[Patient] found walking into bathroom per self. 

Was asked if he needed any help. [Patient] proceeded towards toilet, lost balance and 

fell. Was asked if anything hurt, said only [right] inner upper leg. Abrasion noted on 

[right] fa. No other apparent injuries noted.” Id. at ¶ 3. 
27. 

{¶ 59} The hospital moved for summary judgment, the trial court granted the 

motion, and we affirmed. We found that causation could not be established because there 

were too many unanswered questions as to the cause of the fall, including: 

Was [the nurse] close to [the patient] (or even present in his room) 

when she spotted him out of bed, or was she farther away, perhaps in the 

hallway, when she saw him? How quickly did [he] fall after [she] first 

spotted him: was it instantaneous, or did [he] only fall after an appreciable 

moment or more? Was [she] standing still or moving toward [him] when 

she asked if he needed assistance? Was there some “logistical” impediment 

delaying [the nurse’s] ability to get to [the patient] ([Her] chart note stated 

that he was walking into the bathroom and that he proceeded to the toilet, 

as opposed to a more general observation that he was walking to or 

towards the bathroom)? Did [the nurse], in fact, have a failed attempt to 

assist [him], causing him to “land on bottom?” Did [she] simply stand (in 

some unknown location) and watch these events unfold? Did she dart in 

[his] direction but fail to reach him in time? What else might have 

happened that [she] did not record in her note? There are no established 

facts to support reasonable answers to any of these, or similar questions. 

Id. at ¶ 26. 

{¶ 60} In McFarren, a resident of a residential care facility was found on 

the floor of her room with a fractured hip. She died the next week. The appellate 
28. 

court affirmed summary judgment in favor of the facility on plaintiff’s negligence 

claim because there was no evidence in the record to establish a genuine issue of 

material fact as to how the resident fell and it was, therefore, speculative whether 

instituting different fall precautions would have prevented her fall. 

{¶ 61} Unlike Miller and McFarren, we know what caused Fleenor’s fall: 

the nurse aide failed to prevent his shower chair from tipping backwards as she 

rolled him into the shower. The precise reason the chair tipped backwards—a 

locked wheel, a raised tile, movement by Fleenor, rolling the chair too fast—is of 

no matter under these circumstances. 

2. Expert’s Opinions 

{¶ 62} The estate identified as medical experts Theodore Homa, M.D., Richard 

Stefanacci, D.O., and Erica Armstrong, M.D. All of these medical experts testified that 

in their opinion, Fleenor sustained a subdural hematoma when he fell backwards in the 

shower chair. They opined that his death was caused by this subdural hematoma—not 

dementia. 

{¶ 63} Dr. Armstrong, a forensic pathologist, concluded, based on her review of 

the evidence and her specialized knowledge, skill, experience, training, and education, 

that in the six days following Fleenor’s fall, his “health did not return to baseline but 

instead deteriorated with signs of increased muscle weakness, decreased alertness, and 

increased confusion.” She opined that these signs and symptoms “are indicative of a 

progressively evolving pathophysiological process that temporally occurred after the fall” 
29. 

and “to a reasonable degree of medical probability, that sequela of head, neck, and/or 

torso injury from that fall caused Mr. Fleenor’s death.” In Dr. Armstrong’s view, 

Fleenor’s death should have been reported to the Ottawa County coroner, and the failure 

to do so “precluded the opportunity for a postmortem examination and determination of 

cause and manner of death.” 

{¶ 64} Drs. Homa and Stefanacci testified that they based their opinions on their 

review of the medical records, the testimony of the nurses, aides, and therapists who 

cared for Fleenor, and their education, training, and experience in working with geriatric 

patients with the same or similar conditions as Fleenor. They testified that it was 

incumbent on Riverview to seek an order for imaging of Fleenor’s head or take him to the 

hospital to obtain imaging after his fall. They also testified that as a result of his head 

injury, Fleenor’s cognition deteriorated in the days that followed, also requiring action by 

the nursing staff. They opined to a reasonable degree of medical certainty that Fleenor 

most likely suffered a subdural hematoma and that was the ultimate cause of his death, 

despite the fact that Fleenor’s death certificate reported otherwise. 

{¶ 65} One of Riverview’s challenges to the experts’ testimony was that they 

rejected T.M. and K.N.’s testimony. In particular, because the medical records and the 

testimony of Fleenor’s medical providers reflect that Fleenor was weak and often not in 

control of his movement, Drs. Homa and Stefanacci were skeptical of T.M.’s testimony 

that Fleenor was able to brace himself so that his head would not hit the ground. And 

even though both T.M. and K.N. testified that Fleenor said he did not hit his head, Drs. 
30. 

Homa and Stefanacci were skeptical that Fleenor reliably answered T.M. and K.N.’s 

questions. This was because several members of the nursing staff testified at deposition 

that because of his dementia, Fleenor often provided inaccurate information and even 

denied being in pain when he was clearly exhibiting non-verbal manifestations of pain 

that the staff had come to recognize. 

{¶ 66} Under Evid.R. 705, an “expert may testify in terms of opinion or inference 

and give the expert’s reasons therefor after disclosure of the underlying facts or data.” 

This court has recognized that in eliciting an expert’s opinions, it is not necessary to 

include “all of the conflicting statements made by various witnesses.” Community 

Traction Co. v. Wandtke, 32 Ohio App. 207, 214, 167 N.E. 701, 704 (6th Dist.1929). To

the contrary, a party is entitled to provide its experts with its version of the disputed facts 

in obtaining their opinions. Lawson v. Song, 4th Dist. Scioto No. 97 CA 2480, 1997 WL 

596293 (Sept. 23, 1997). See also Community Traction at 214 (“[I]t is sufficient if the 

question assumes the existence of facts which the evidence fairly and reasonably tends to 

establish in support of the claim or theory for which the party asking the question is 

contending.”). 

{¶ 67} Here, the estate’s experts fully disclosed both that they had discounted 

T.M. and K.N.’s testimony in reaching their conclusions and why they discounted it. 

And even though T.M. was the only observer of Fleenor’s fall, the accuracy of T.M.’s 

version of events is itself a fact question, particularly in light of M.W.’s testimony that 

Fleenor lacked the control and strength to protect his head in anticipation of the chair 
31. 

tipping backwards. See Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 167, 499 

N.E.2d 1291 (10th Dist.1985) (“If an issue is raised on summary judgment, which 

manifestly turns on the credibility of the witness because his testimony must be believed 

in order to resolve the issue, and the surrounding circumstances place the credibility of 

the witness in question—for example, where the potential for bias and interest is 

evident—then, the matter should be resolved at trial, where the trier of facts has an 

opportunity to observe the demeanor of the witness.”). 

{¶ 68} Riverview also challenged the estate’s experts’ opinions on the basis that 

their CVs were outdated and counsel for the estate assisted in drafting their expert 

reports. We reject both of these challenges. To the extent that the experts’ CVs were 

outdated, Drs. Homa and Stefanacci testified at deposition and provided updated 

information about their professional experience. And concerning counsel’s participation 

in drafting the experts’ reports, Dr. Homa testified that the estate’s lawyer drafted his 

report, but he explained that he “had a conversation that included my entire review and 

summary, my conclusions, the way I saw things come together, and from there notes 

were taken and then this was typed up, and then sent back to me for approval.” He 

confirmed that he found nothing in the report that was incorrect and there were no 

substantive errors. Civ.R.26(B)(7) does not prohibit counsel from assisting in drafting an 

expert’s report, particularly where, as here, the reports were generated based on the 

information provided by the experts about the substance and reasons for their opinions, 

 
32. 

the experts adopted the contents of the reports by signing them, and the experts testified 

at deposition to opinions and conclusions that were consistent with what was expressed in 

their reports. 

{¶ 69} Given the experts’ opinions concerning the sequela of events that often 

occurs when a person sustains a head injury, and construing all evidence in the estate’s 

favor as required under Civ.R. 56, we cannot conclude that the sequence of events here—

Fleenor’s fall, his poor alertness just a few days later, culminating in his death six days 

after the fall—was a mere “coincidence of timing,” as Riverview would have us do. 

Rather, we find that the evidence presents a question of fact concerning causation that 

cannot be resolved on summary judgment. 

C. Sui Juris 

{¶ 70} Riverview contends that the claims against it were properly dismissed 

because Ottawa County is not sui juris. It argues that “[u]nless a county has adopted a 

charter or alternative form of government—which Ottawa County has not—it may be 

held accountable only when sued through its Board of County Commissioners.” We 

disagree. 

{¶ 71} R.C. 2744.02(B)(2) and (5) set forth circumstances under which a “political 

subdivision” may be liable for injury, death, or loss to person or property. R.C. 

2744.01(F) defines “political subdivision” to include a county. In Plate v. Johnson, 149 

F.Supp.3d 827 (N.D.Ohio 2016), Judge Carr considered the question of whether the 
33. 

plaintiff properly brought suit against Lucas County—which was itself named a 

defendant and was not sued through its board of county commissioners. 

{¶ 72} Judge Carr acknowledged that “[a]s a political subdivision entitled, under 

Ohio law, to sovereign immunity, a county ‘cannot sue or be sued except as specially 

authorized by statute.’” Id. at 829, quoting Smith v. Grady, 960 F.Supp.2d 735, 740 

(S.D.Ohio 2013). He recognized that R.C. 301.22 (which provides that “[e]very county 

adopting a charter or an alternative form of government is a body politic and corporate 

for the purpose of enjoying and exercising the rights and privileges conveyed under it by 

the constitution and the laws of this state” and “is capable of suing and being sued”) is 

one such Ohio statute that authorizes suit against a county. He explained, however, that 

R.C. 301.22 “does not define [a] County’s capacity (or lack thereof) to sue, or its status as 

a juridical entity.” Id. Rather, he concluded, “the question of a county’s suability is not 

conceptually distinct from the county’s sovereign immunity as a political subdivision of 

the state.” 

{¶ 73} Here, R.C. 2744.02(B)(2) and (5) provide exceptions to political 

subdivision immunity and render a county potentially liable for torts or statutory 

violations resulting in injury or death. In other words, a county is suable for claims 

falling within these exceptions to political subdivision immunity. We, therefore, 

conclude that Ottawa County was properly named a defendant to this action. See also 

Clark v. Campbell, 4th Dist. Ross No. 19CA3673, 2020-Ohio-3333, ¶ 43 (finding that 

 
34. 

county board of developmental disabilities was a political subdivision under R.C. 

2744.01(F) that was capable of being sued); Rankin v. Cuyahoga Cty. Dept. of Children 

& Family Servs., 8th Dist. Cuyahoga No. 86620, 2006-Ohio-6759, ¶ 18, aff’d in part, 

rev’d in part, on other grounds, 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 5 

(rejecting Cuyahoga County Department of Children and Family Services’ position that it 

was not sui juris because it was not a political subdivision). 

{¶ 74} For these reasons, we agree with the estate that the trial court erred in 

granting summary judgment in favor of Riverview; we find its first assignment of error 

well-taken. We agree that the trial court erred in failing to find that a genuine issue of 

material fact exists concerning whether the nursing staff exercised its discretion in a 

manner that was reckless; we find its second assignment of error well-taken. And we 

agree that the trial court erred in disregarding evidence offered by the estate that raised 

genuine issues of material fact; we find its third assignment of error well-taken.

IV. Conclusion 

{¶ 75} We conclude that the trial court erred in granting summary judgment to 

Riverview because genuine issues of material fact exist concerning whether R.C. 

2744.03(A)(5) provides a defense to immunity. Specifically, there are issues of fact 

concerning whether Riverview’s nursing staff exercised its discretion in a reckless 

manner and whether such recklessness resulted in Fleenor’s injury and death. We find 

the estate’s three assignments of error well-taken. 
35. 

{¶ 76} Accordingly, we reverse the September 3, 2020 judgment of the Ottawa 

County Court of Common Pleas and remand this matter to the trial court for proceedings 

consistent with this decision. Riverview is ordered to pay the costs of this appeal under 

App.R. 24. 

Judgment reversed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

 JUDGE 

Thomas J. Osowik, J. 

 _______________________________ 

Christine E. Mayle, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.