Wrongful death case remanded back to common pleas court

Larry Limpf

A ruling that granted summary judgment in favor of the Ottawa County Riverview Healthcare facility in a wrongful death lawsuit has been reversed by the Ohio Sixth District Court of Appeals.
The appellate court last month sided with the estate of a resident of the nursing home, Jennings Fleenor, 77, who died Aug. 4, 2016 - six days after a roll-able shower chair he was in tipped over – and remanded the case back to the Ottawa County Common Pleas Court.
“We conclude that the trial court erred in granting summary judgment to Riverview because genuine issues of material fact exist concerning where (Ohio Revised Code) provides a defense to immunity,” the appeals court ruled. “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. Accordingly, we reverse the Sept. 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.”
The common pleas court concluded that no evidence had been presented that Riverview exercised its discretion in the resident’s care after the fall “with malicious purpose, in bad faith, or in a wanton or reckless manner.”
The Fleenor estate argued the fall was caused by an aide’s failure to control the shower chair in a manner that it wouldn’t tip and the specific reason for it tipping, such as a locked wheel, movement by Fleenor, pushing the chair too fast, didn’t matter.
The appeals court agreed.
“Under the circumstances of this case, given that (the aide) 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,” the appeals court wrote.
Attorneys for Riverview also contend that claims against it were properly dismissed because Ottawa County isn’t sui juris - that it hasn’t adopted a charter or alternative form of government - and it may be held accountable only when sued through its board of county commissioners.
The appeals court disagreed and cited sections of the Ohio Revised Code that it said 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,” the appeals court wrote.
The estate presented three doctors as expert witnesses who opined Fleenor sustained a subdural hematoma when he fell backwards in the shower chair and his death was caused by the hematoma – not by pre-existing medical issues.
According to court records, his death certificate lists his manner of death as natural, with the immediate cause as end-stage dementia and other significant contributing conditions as peripheral vascular disease and coronary artery disease.
An autopsy wasn’t performed.


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