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Colling v. Franklin Cty. Children Serv.6/29/1993
PETREE, Judge.
Plaintiffs, Linda S. Colling, individually and as administrator of the estate of her deceased son, Mark E. Longstreth, David M. Longstreth, Sr., and the derivative heirs and next of kin of Mark E. Longstreth, appeal from the Franklin County Court of Common Pleas which granted summary judgment in this wrongful death action to defendants, Franklin County Children Services ("FCCS"), Franklin County Children Services Board, Franklin Village, Franklin County Commissioners, and Carol Hoversten-Pepper. Plaintiffs assert five assignments of error on appeal, as follows:
"I. The trial court erred in granting Children Services' worker Carol Hoversten-Pepper immunity under 2744.03(A)(6)(b) of the Code when, given all reasonable inferences under Civ.R. 56(C), plaintiffs' evidence demonstrates the requisite recklessness to sustain a wrongful death claim against the governmental employee.
"II. The off-site outing conducted by Children Services could be characterized as a proprietary function. The trial court erred when it failed to consider the circumstances under 2744.02(B)(2) of the Code as a basis to impose liability upon Children Services.
"III. By court order, Mark Longstreth was placed in Children Services' custody and protective residential care. The trial court erred in disregarding the duties and liabilities imposed upon the agency by this common law special relationship.
"IV. Mark Longstreth was endangered by Children Services. When reading Revised Code 2125.01 and 2744.02(B)(5), in pari materia, the law expressly imposes liability upon the agency for the child's resulting wrongful death.
"V. The sovereign immunity act may not be applied in a matter which denies decedent equal protection and due course of law."
The present appeal poses the question of whether a county children services agency can be held responsible for the drowning death of a juvenile in its custody at an agency-sponsored fishing trip. Though we disagree with the trial court that, pursuant to principles of sovereign immunity, the agency can never be held liable for agency-sponsored recreational activities, we nonetheless find that there are no genuine issues of material fact to be tried on the instant set of facts. Accordingly, we must affirm the judgment of the trial court.
The statement of face set forth in plaintiffs' brief and accepted by defendants in their brief state the following undisputed pertinent facts. Mark E. Longstreth drowned during an FCCS fishing outing on July 22, 1989. At the time, Mark was subject to the custody and residential care of FCCS in accordance with a July 19s1989 juvenile court dispositional order declaring him an unruly minor. Pursuant to that order, Mark was placed at a residential care facility known as the FCCS Transition Center; which serves as an emergency shelter and care facility and is operated as a "child residence center" under R.C. 5153.03, 5153.16, and Ohio Adm.Code Chapter 5101:2-9.
Carol Hoversten-Pepper is a social worker employed at the FCCS Transition Center as an activities therapist whose job duties include the planning and supervision of youth activities for children there. In the days preceding Mark Longstreth's death, Hoversten-Pepper planned a merit outing, involving fishing and swimming, for certain boys who had behaved well at the center during the previous week. These well-behaved boys were told that they were going to go to Alum Creek and perhaps to the beach there to swim. Mark Longstreth was one of those boys.
On the day of this outing, Hoversten-Pepper advised the on-site agency staff that the boys were going on a
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