I respectfully dissent from the majority's decision because I cannot accept the conclusion that reasonable minds could not differ that the actions and inactions of James Degener, the BCDHS social worker, with respect to the supervision of Tiffany Hubbard's placement, did not amount to recklessness. *Page 457
In companion cases decided last year, Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, and Thompson v.McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d 705, the Ohio Supreme Court adopted the definition of "recklessness" as set forth in the 2 Restatement of the Law 2d, Torts. As the majority correctly points out, the Supreme Court cites 2 Restatement of the Law 2d, Torts (1965), at 587, Section 500, to define the term as follows:
"`The 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.'" Thompson, supra, at 104-105,559 N.E.2d at 708. See Marchetti, supra, 53 Ohio St.3d at 96,559 N.E.2d at 700, fn. 2.
Unlike the majority, however, after applying this definition to the facts in the case at hand, I would find reasonable minds could differ on whether Degener's failure to adequately supervise Tiffany's placement was so unreasonably dangerous that he knew or should have known it was highly probable harm would result to Tiffany.
The majority concludes the trial court properly granted summary judgment on appellant's inadequate-supervision claim in favor of Degener on the basis that (1) Degener stopped at the Hubbard home once and called several times after the placement, and (2) Degener gave Nieman authorization to seek medical attention for herself and Tiffany. The majority also declares that Degener's failure to confirm Hubbard's employment does not amount to recklessness. Upon a review of all the evidentiary material, I believe the majority's finding ignores Degener's experience, training and knowledge of the unique circumstances which led up to and surrounded Tiffany's placement into the Hubbard home.
At his deposition, Degener testified he had "some reservations" as to placing the children with Hubbard and Nieman given Nieman's relatively young age (she was seventeen at the time) and a Children's Diagnostic Center evaluation of both Hubbard and Nieman. A reading of the CDC evaluation, which was undertaken to assess Hubbard's and Nieman's ability to parent the children, bears out Degener's apprehension. The evaluation portrays Hubbard as an immature, inadequate and borderline mentally retarded man who has been on welfare since he dropped out of school in the eleventh grade. Contrary to the conclusion reached by the majority, the evaluation amply warns of Hubbard's penchant for belligerent and malevolent behavior. According to the evaluation, Hubbard suffers from a passive-aggressive expression *Page 458 of anger that, in the opinion of a clinical psychologist, directly affects Hubbard's ability to parent children. The evaluation also states that the disorder stems from Hubbard's upbringing in a dysfunctional family filled with conflict and abuse. The evaluation concludes by noting that neither Hubbard nor Nieman has the necessary maturity and cooperation to make a "blended" family succeed.
Degener's reservations about the placement must have been persuasive to him because they prompted him to make a recommendation to the trial court which was eventually implemented. In an addendum to a social summary prepared for the court, Degener recommended that Hubbard receive custody of the children subject to "protective services" by BCDHS. At his deposition, Degener testified that the purpose of the "protective services" recommendation was to "keep in touch with the family, to arrange the visits, and to make certain that things weregoing well." (Emphasis added.) R.C. 5101.46(F)(3) defines "protective services" as "services for the prevention or remedying of the neglect, abuse, or exploitation of children * * * who are unable to protect their own interests." Based on the recommendation, the court ordered BCDHS to maintain protective supervision over the placement for sixty days. "Protective supervision" is defined by R.C. 2151.011(B)(16) as:
"[A]n order of disposition pursuant to which the court permits an abused, neglected, dependent * * * child * * * to remain in the custody of his parents, guardian, or custodian and stay in his home, subject to any conditions and limitations upon the child, his parents, guardian, or custodian, * * * including supervision as directed by the court for the protection of the child."
Despite taking a precautionary measure to not only alleviate his doubts about the placement, but to ensure the placement into the Hubbard home went properly, Degener last saw Tiffany on August 11, 1986, a full month and a half before the child's death. Degener also canceled two home visits to the Hubbard home during the same time interval. Admittedly, Degener did inquire into the health of the children and authorize medical assistance for Tiffany in the period following the placement.
However, the record also reflects Nieman told Degener on September 11, 1986 that Tiffany had the flu and that twelve days later, on September 23, 1986, Nieman again notified Degener that Tiffany still suffered from listlessness and "just lays [sic] around." In a phone conversation that same day, Nieman told Degener she planned to take Tiffany back to the doctor the next day. Although being informed that Tiffany was suffering from the flu, Degener did not personally check on the child's condition during a visit to the Hubbard home while Tiffany allegedly had the ailment, nor did he confirm whether Nieman had actually taken the child to a doctor. Also, what else *Page 459 would Nieman have said if she were trying to conceal the abuse being committed on Tiffany? In short, Degener fell short in providing the necessary "protective services" to prevent the abuse of a three-year-old child unable to protect her own interest.
It is well settled that the granting of summary judgment terminates a litigant's right to a trial and precludes the jury's consideration of a case. See Shaw v. Central Oil AsphaltCorp. (1981), 5 Ohio App.3d 42, 5 OBR 45, 449 N.E.2d 3. Consequently, summary judgment should be used cautiously and sparingly, and granted only when it appears from the evidentiary material, after resolving all doubts and construing the evidence against the moving party, that reasonable minds can reach only an adverse conclusion as to the party opposing the motion.Vetovitz Bros., Inc. v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 14 O.O.3d 292, 397 N.E.2d 412. Although often repeated, it bears mentioning once again: the purpose of summary judgment is to determine whether triable issues of fact exist, not to try issues of fact. See Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7,13 OBR 8, 467 N.E.2d 1378.
Construing the evidence before the trial court in a light most favorable to appellant, I believe reasonable minds could differ as to whether the facts, of which Degener had reason to know, should have led him to the belief that his failure to observe Tiffany during this period permitted an unreasonable and substantial risk of physical harm to Tiffany.
As a practical matter, it is more difficult to identify whether a jury question exists based upon a person's inactions than upon the person's actions. To answer the question in this case, we must look to all of the facts and circumstances known to Degener at the time and measure that knowledge against his training, experience and education.
Degener was a man of some experience as a social worker. He had worked for almost two years as a social worker for BCDHS, received a master's degree in social work from the University of North Carolina, and was trained to detect signs of child abuse and neglect. It was this experience, education and training which prompted him not only to express doubt as to the placement, but to recommend a period of "protective services" based, in part, on his knowledge of Hubbard's abuse-filled childhood and the negative effect that Hubbard's anger displacement disorder had on Hubbard's ability to care for children. These doubts, in addition to the unusual circumstances surrounding the placement, should have alerted Degener to be aware of any questionable or suspicious behavior at the Hubbard home. The fact Degener was informed by Nieman that Tiffany had an abnormally long illness, conduct which a trained social worker could arguably consider to be a crude attempt to *Page 460 "cover-up" visual effects of child abuse, particularly in light of the fact the social worker had not seen the child for over a month, and that Degener did not check on Tiffany when he visited the house while the child was supposedly ill or verify that Tiffany had been taken to a doctor as Nieman implied, could lead reasonable minds to differ on whether Degener's actions ignored unreasonably dangerous circumstances that he should have known would probably result in harm to Tiffany.
The autopsy of the coroner revealed that several of the bruises inflicted on Tiffany by Hubbard, some of which were fourteen to thirty days old at the time of the child's death, were visible on the child's legs, arms, face and neck. Had Degener seen Tiffany while at the Hubbard home or, at the very least, been assured by a source other than Nieman that Tiffany had been examined by a doctor, a strong probability exists that the bruises would have been detected and Hubbard's behavior exposed. In light of these circumstances, it is my opinion that a jury question is presented as to whether Degener's omissions, which failed to protect Tiffany, rose to the level of recklessness sufficient to impose liability under R.C.2744.03(A)(6)(b).