Update. Read an analysis of the argument here.

On October 26, 2021, the Supreme Court of Ohio will hear oral argument in Tammy Smathers, individually and on behalf of the Estate of Harmony Brooklyn Rayne Carsey v. Rick Glass, Executive Director of Perry County Children’s Services, et al., 2020-1062. At issue in this case is whether a mistaken belief, held by child protection caseworkers, that a child was not living with an accused abusive parent is sufficient to preserve the caseworkers’ immunity from liability. This case will be argued at the University of Akron School of Law.

Case Background

Tylor Carsey and Tammy Smathers, the father and paternal grandmother of two-year-old Harmony Carsey lodged complaints in the fall of 2015 about the mother’s treatment of the child. Perry County Children’s Services (PCCS) began investigating in November 2015, following a report from Tammy Smathers that the child was being restrained in a crib in a hot upstairs bedroom.

Nick Pease, a PCCS caseworker, began checking in on Harmony and the other children at Crystal Carsey’s home. Crystal’s husband, Tylor Carsey, had recently left her and the children following a marital dispute. Pease documented twice in November, after home visits, that the children appeared safe. However, Harmony was later rushed to an emergency department after falling at her grandmother’s house, one day after a visit from Pease. Physicians at the emergency department decided to life-flight Harmony to a pediatric intensive care unit in another hospital.

While Harmony was receiving care in the PICU, another caseworker, Katie Hursey, spoke with a doctor, who did not indicate Harmony had been abused. The doctor attributed a distended stomach to gas and said the child had been cleared by a trauma team. Harmony was thin, the doctor told Hursey, but not malnourished.

Harmony was discharged from the hospital and began living with her grandmother and father for an extended period. However, during a home visit, Pease did note Harmony’s presence at Crystal Carsey’s residence.

Around Christmas, Tylor Carsey returned Harmony to Crystal Carsey for an extended stay but did not notify PCCS after doing so. Around the same time, PCCS received medical records from Harmony’s PICU visit that indicated an “overwhelming amount of evidence concerning….physical abuse and neglect.”

On January 8, 2016, Harmony died from dehydration in Crystal Carsey’s home. Harmony had been left in an overheated room without fluids. PCCS reported being entirely unaware that Harmony had not been in her father’s care in the weeks preceding her death and instead had moved back in with her mother.

On November 20, 2017, Tammy Smathers filed a wrongful death action against PCCS, Executive Director Glass, Pease, and two other PCCS caseworkers, Katie Hursey and Ben Taylor,  (“collectively, the Caseworkers”) alleging negligent and willful misconduct and violation of section 5101:2-37-02 of the Administrative Code. Athens County Common Pleas Court Judge Michael Ward, sitting by assignment in Perry County, dismissed all claims against the Agency, all the negligence claims against the Caseworkers and the administrative code violation claims.

On November 13, 2018, Smathers filed an amended complaint alleging that the Caseworkers acted with willful indifference and were reckless in failing to investigate allegations that Harmony Casey was being abused and neglected. Judge Ward granted the Caseworkers’ motion for summary judgment and dismissed Smathers’ claims, finding the Caseworkers were immune from liability pursuant to R.C. 2744.02(A)(1). Smathers appealed.

The Appeal

In a unanimous opinion written by Judge John Wise, and joined by Judges William Hoffman and Patricia Delaney, the Fifth District Court of Appeals upheld the trial court’s decision. The appeals court agreed with the trial court’s finding that no genuine issues of material fact existed as to whether the caseworkers acted with willful indifference or recklessness in their investigation of abuse of Harmony.

The Fifth District pointed out that the caseworkers were never informed that Harmony had returned to live with her mother on Christmas Day, and PCCS received no abuse complaints between Christmas and the date of Harmony’s death. The court cited R.C. 2744.03, which provides public employees with immunity from wrongful death damages, unless their actions or omissions were with malicious purpose, in bad faith, or in a reckless or wanton manner. The appellate court did not find the caseworkers acted in any such manner given they were unaware Harmony was living with her mother and given that PCCS discovered no immediate threats of serious harm during Pease’s visits to Crystal Carsey’s home.

The Fifth District also rejected Smathers’ claim that the trial court failed to consider the opinions of her expert witnesses. One such witness had concluded that the caseworkers acted recklessly, but the appeals court held such a conclusion is a matter for the trier of fact. Finally, while a grant of summary judgment is reviewed de novo, an appeals court  defers to the trial court’s findings of fact and “will not disturb the trial court’s decision if it is supported by competent, credible evidence.”

Key Statutes and Precedent

R.C. 2744.02(A)(1) (provides, in part: “Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death or loss to person or property allegedly caused by any act or omission of a political subdivision or employee of the political subdivision in connection with a governmental or proprietary function.”)

R.C. 2744.03(A)(6)(b) (public employees are immune from civil liability except under three circumstances, including if their “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”)

Ohio Civ.R. 52 (trial court not required to list all its reasons in support of decision to grant summary judgment.)

Ohio Adm. Code 5101:2-39- 01(C) (provides that if removing a child from a home, the public children services agency must do one of the following: provide a court with “documentation of the provision of reasonable efforts to prevent removal,” unless certain factors apply; obtain an ex parte emergency order from the court; or obtain assistance from law enforcement if exigent circumstances require immediate intervention before a child is removed.)

State v. Williams, 4 Ohio St.3d 53 (1983) (“Any relevant conclusions which are supported by a qualified expert witness … should be received unless there are other reasons for exclusion.”)

O’Toole v. Denihan, 2008-Ohio-2574 (defines recklessness as “a perverse disregard of a known risk,” adding that since the standard for showing recklessness is high, summary judgment can be appropriate when conduct does not demonstrate a “disposition to perversity.” Also states the reckless actor must be conscious that their “conduct will in all probability result in injury.”)

Lindsey v. Summit Cty. Children Servs. Bd., 2009-Ohio-2457 (9th Dist.) (use of expert witness to make legal conclusion fails to show genuine issue of material fact as to whether party lost immunity due to recklessness.)

Anderson v. Massillon, 2012-Ohio-5711 (1. “Willful,” “wanton,” and “reckless” describe different and distinct degrees of care and are not interchangeable (Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990), modified.) 2. Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. (Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122 (1948), approved and followed.) 3. 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. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977), approved and followed.) 4. 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. (2 Restatement of the Law 2d, Torts, Section 500 (1965), adopted.)

Argabrite v. Neer, 2016-Ohio-8374 (“Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented.”)

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, DeWine, and Stewart

No: Justices Fischer, Donnelly, and former Justice French*

*Justice French’s tenure on the Court ended on Jan. 2, 2021.

Smathers’ Propositions of Law Accepted for Review

Proposition of Law 1

Falsification of safety assessments required of Public Children Services Agencies (PCSAs) by Ohio statute and regulations is probative on whether a children’s services worker acted recklessly, wantonly, or intentionally.

Proposition of Law 2

On review of a motion for summary judgment raising statutory immunity as applied to CPS workers, a trial court should consider a well-founded expert affidavit detailing conduct probative on the standards stated in the statute.

Proposition of Law 3

On review of a motion for summary judgment, a court of appeals reviews de novo, not for competent, credible evidence.

Proposition of Law 4

When evaluating whether a children’s service’s worker’s conduct was reckless, willful, wanton, or intentional, allegations of comparative fault are irrelevant.

Smathers’ Argument

Caseworker Pease’s investigation into Harmony’s well-being shows he acted with a malicious purpose to obscure his and other PCCS workers’ misconduct. He did not complete safety or family assessments on time. When he did complete the safety assessment, he falsified responses by attesting that no credible evidence of a safety risk existed. Most egregiously, Pease wrote that Harmony was not harmed despite then possessing the hospital report of “overwhelming evidence of abuse and neglect” and despite personally observing Harmony’s low weight, bruising and hair loss.

PCCS also knew Crystal Carsey had previously lost custody of an older child; had no working refrigerator in her home; had been charged in the past with child endangerment; and had a dangerous crib in the house, exposed as it was to an electrocution hazard and modified to restrain a child.

These facts support that a willful violation of Ohio children’s services documentation law occurred with full knowledge of a high probability that serious harm would result. And that is strong evidence of a malicious purpose and bad faith.

This Court should hold that disregarding Ohio’s child protection statutes is probative of whether a caseworker’s actions meet the standards of R.C. 2744.03(A)(6)(b) and thus eliminate employee immunity. In the caseworkers’ motion for summary judgment, they only addressed recklessness, but the various statutory standards of misconduct are distinct and not interchangeable.

In addition, PCCS could have obtained the medical report earlier had it simply asked the hospital for access. Instead, PCCS wasted time securing a medical release form despite it being unnecessary; medical records can be released to children’s services employees if doing so is in the best interest of the child.

The caseworkers’ justification for not acting — that they thought Harmony had moved in with her father — is false. No one ever documented this belief. Pease observed Harmony living with Crystal Carsey in December. The caseworkers knew or should have known that, barring a formal custody decision, Harmony could have been staying with either parent. And Pease continued to follow up with Crystal Carsey, which is inconsistent with a belief that she no longer cared for Harmony.

Expert witnesses

This Court should recognize the importance of experts in child abuse cases. This Court should hold that in cases dealing with statutory immunity as applied to children’s services, trial courts must consider competent, specialized knowledge from experts prior to drawing any conclusions about their admissibility or usefulness. The first expert for Smathers, Dr. Jeff Clark, relied on detailed facts from the record to come to his conclusions. His opinion, that the Caseworkers acted recklessly, relied on the O’Toole definition of recklessness. The Caseworkers did not challenge Dr. Clark’s conclusions or qualifications. They inaccurately dismissed his conclusions as legal.

The second expert, Dr. Jeff Lee, found that many of Harmony’s dozens of contusions and abrasions would have been observable in the weeks prior to her death, when Pease saw her. The employees did not challenge Dr. Lee’s findings or qualifications.

De novo review

The Fifth District committed obvious error by not considering the trial court’s summary judgment decision de novo but instead finding it would not disturb the trial court’s decision if it was supported by “competent, credible evidence.” Whether or not an employee acted recklessly or wantonly is viewed under the totality of the circumstances.

A de novo review would have resulted in a fresh look at all the evidence, including the experts’ opinions. It would have shown PCCS Executive Director Rick Glass recklessly failed to supervise properly in this case, including by not intervening after learning Harmony had been life-flighted. It would have shown another caseworker, Katie Hursey, disregarded risks reported to her by Smathers and doctors. It would have shown that caseworker Taylor perversely disregarded Harmony’s living conditions, including the caged crib and medical documentation of abuse and neglect. It would have shown that Glass failed to supervise and ignored evidence of Harmony’s abuse and neglect and in fact promoted Pease within weeks of Harmony’s death. Glass also admitted that multiple red flags existed in this case.

Comparative fault

Ohio caselaw and common law stand for the propositions that Ohio courts cannot confer immunity based on a different standard than that provided by the legislature, and when a tort is committed recklessly, comparative fault is immaterial. However, the lower courts engaged in a de facto comparative fault analysis by focusing on Smathers’ failure to notify PCCS that Harmony was back in her mother’s care around Christmas.

The question of the caseworkers’ malicious purpose, bad faith, wanton or reckless conduct should be left to a jury. This Court should reverse the Fifth District and remand the case to Perry County Court of Common Pleas for trial.

Caseworkers’ Argument

The Caseworkers’ conduct was not reckless or wanton, nor was it in bad faith or with a malicious purpose. They never had sufficient evidence to justify removing Harmony from Crystal Carsey’s home. Ohio Adm. Code 5101:2-39-01 mandates that evidence of a threat of immediate harm is necessary to remove a child from a parent’s home without court approval. PCCS never held such evidence.

The caseworkers held a reasonable, justifiable belief that Harmony was safely living with her father and grandmother from around Thanksgiving 2015 until she died. This belief was supported by the fact that Tammy Smathers and Tylor Carsey brought Harmony with them during a visit to the PCCS offices in early December, in which they confirmed to Pease that they now had custody of the girl, and that they were going to formalize custody in court that very day. The belief was further bolstered by the fact that neither Smathers nor her son informed anyone at PCCS that they had returned Harmony to her mother’s home at Christmas for a full two weeks.  Smathers even testified to this in her deposition, before she later attempted to contradict herself   in an affidavit. She testified that she and her son had custody of Harmony “until approximately Christmas,” and she did not tell PCCS that Harmony had been returned to her mother. The Caseworkers were shocked to learn that Smathers had returned Harmony to her mother’s house without telling any of them, particularly if they thought it was unsafe for her to be there.

Ohio Adm. Code 5101:2-39-01(C)(1)(a) makes clear that children’s services workers should generally strive to prevent removal of children from their parents, and this is what the caseworkers in this case did. They contacted or attempted to contact the family about 10 times and offered services and assistance.

In addition, the O’Toole case warns against applying immunity law with the benefit of 20-20 hindsight, which Smathers uses in an effort to declare each of the caseworkers responsible for Harmony’s death.

Pease did not falsify the safety assessment. He completed it based on his knowledge at the time—a time when he believed Harmony was living safely with her father and grandmother. Late completion of a single form is not evidence of reckless conduct.

The lower courts found that none of the caseworkers here knew immediate injury to the child was a “substantial certainty;” a threshold that was also not met in the O’Toole case, in which a children’s services employee was cleared of an allegation of recklessness. The lower courts also properly considered all relevant standards of culpability listed in R.C. 2744.03(A)(6)(b).

Smathers has mischaracterized some of the evidence, including by stating Pease screened out a call involving Crystal Carsey’s child endangerment charge. In fact, a public children’s service agency in another county received that call and handled the issue.

Expert witnesses

Dr. Clark’s affidavit was conclusory. His finding, that the employees were reckless, is a legal conclusion. It cannot be used to defeat summary judgment as it is insufficient to strip the legislature’s grant of presumptive immunity to child protection employees and cannot usurp the role of the court in evaluating legal liability. The Lindsey case supports the proposition that an expert’s affidavit cannot create an issue of fact when it contains a legal conclusion.  It also appears that Smathers concealed from Dr. Clark that she and her son failed to inform PCCS that they had returned Harmony to her mother at Christmas.

Dr. Lee’s medical findings failed to specify how long before Harmony’s death her abrasions would have been visible, or that anyone from PCCS even saw them.

The expert affidavits do not create a genuine issue of material fact.

De novo review

Smathers simply ignored the appellate court’s affirmation, that it was in fact conducting a de novo review.

The Fifth District’s review led it to conclude, as had the trial court, that Harmony was in the physical custody of Tammy Smathers and Tylor Carsey until about Christmas, and that the employees reasonably believed Harmony was safe with them. This was justification for not removing Harmony upon receipt of the hospital records that warned of evidence of abuse.

The caseworkers do not simply claim to have believed Harmony was not living with her mother. This is a fact Smathers herself testified to in her deposition.

Comparative fault

The Caseworkers have never argued that comparative fault is a factor in this case. Neither lower court discussed comparative or contributory fault.

As Smathers has argued, whether an actor was reckless is determined based on the totality of the circumstances. This required the lower courts to consider that Smathers did not inform PCCS that Harmony was living with her mother again. The caseworkers held a reasonable belief that Harmony was not in danger, and they cannot be considered reckless for their reaction to a fact that had not been shared with them.

In sum, none of the caseworkers’ actions qualified as meeting the standards of misconduct required to strip them of statutory immunity. This court should affirm the Fifth District’s decision.

Amici in Support of Smathers

Ohio Association for Justice

The Ohio Association for Justice (“OAJ”) is interested in this case because one of its goals is to advocate for those who cannot do so for themselves. The trial court in this case misapplied the summary judgment procedure in resolving all facts in favor of the moving party, the PCCS caseworkers This resulted in a de facto bench trial in which Smathers lost her right to a jury trial. This Court should reverse and remand this case.

OAJ’s Proposed Propostion of Law 1

A trial court’s summary judgment decision on the immunity of a political subdivision employee under R.C. 2744.03(A)(6) is not entitled to a unique standard of review, but instead is reviewed de novo like all other summary judgment decisions.

OAJ’s Proposed Proposition of Law 2

The willful, wanton, or reckless exceptions under the political subdivision employee immunity statute found in R.C. 2744.03(A)(6) are separate and distinct standards.

OAJ’s Proposed Proposition of Law 3

An expert witness who knows the industry standards for social workers recognizing child abuse and neglect is not impermissibly opining to the ultimate issue of whether a social worker was “reckless” under the political subdivision employee immunity statute found in R.C. 2744.03(A)(6).

Child USA

Child USA is the leading nonprofit think tank working to address child abuse and neglect. Child USA is interested in the case because it touches on its mission to protect children and its belief that reckless and wanton child protection workers should be held accountable. Childhood trauma has a strong correlation with impaired emotional and cognitive development and future psychiatric and physical disease, and it leads to societal costs in health care, education, and welfare systems. The Ohio legislature imposed mandatory obligations on child protection workers to avoid the most serious consequences of child abuse. The possibility that workers will disregard their duties and avoid liability via statutory immunity should not be tolerated. This Court should reverse the trial court’s award of summary judgment and remand to a fact finder who can determine if the PCCS caseworkers acted recklessly.

American Professional Society on the Abuse of Children

The American Professional Society on the Abuse of Children is a nonprofit interested in the case because it works to combat child maltreatment, often through policy leadership to enhance child protection. Intrafamilial child torture is more severe than other types of child maltreatment, and it can result in severe consequences such as permanent physical damage or disfigurement, permanent psychological damage, and death. Parents who torture their children are unlikely to change as their psychopathologies are difficult to treat. PCCS investigators knew Harmony was restrained in a hot room without water or food. This Court should overturn summary judgment and remand the case for trial.

Amici in Support of the Caseworkers

Buckeye Association of School Administrators; County Commissioners Association of Ohio; Ohio Association of School Business Officials; Ohio Job and Family Services Directors’ Association; Ohio Municipal League; Ohio School Boards Association; Ohio Township Association; and Public Children Services Association of Ohio are political subdivisions or employees of political subdivisions, and they are interested in seeing the Political Subdivision Tort Liability Act interpreted properly. Compassionate child protection workers are struggling to manage overwhelming caseloads amid the pandemic and Ohio’s opioid crisis. Statutory immunity for these workers is crucial to allow them to make candid decisions about removal without their judgment being clouded by liability concerns. If immunities were weakened, funding priorities would shift away from the care and protection of children and toward mathematical models to evaluate and fund acceptable amounts of loss. This Court should affirm the unanimous lower courts.

Student Contributor: Max Londberg