COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67707 OTIS PEARSON : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-256086 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: DENNIS A. ROTMAN, ESQ. MICHAEL A. DOLAN, ESQ. Suite 300, C.A.C. Building Room 106, City Hall 1148 Euclid Avenue 601 Lakeside Avenue Cleveland, Ohio 44115 Cleveland, Ohio 44114 - 2 - DYKE, J.: Plaintiff-Appellant, Otis Pearson, appeals a summary judgment granted in favor of defendant-appellee, the City of Cleveland in his medical malpractice action. In a single assignment of error, appellant claims that the trial court erred in granting summary judgment because a question of fact remains with respect to whether appellee's employees acted recklessly in failing to timely provide him with certain medications during the first three days of his incarceration at the Cleveland House of Corrections. Upon review, we find appellant failed to establish recklessness on the part of appellee's medical staff to defeat immunity granted to political subdivisions pursuant to R.C. 2744. Accordingly, the summary judgment of the trial court is affirmed. I THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT. Summary judgment is proper, pursuant to Civ.R. 56(B) if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth - 3 - specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id. 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. See, Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. R.C. 2744.02(A)(1) provides that: * * * Except as provided in division (B) of this section, a political subdivision is not liable for damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. R.C. 2744.02(B) lists several exceptions to the above-cited general grant of immunity. R.C. 2744.02(B)(4) provides that: Political subdivision are liable for injury, death or loss to persons or their property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a government function, including, but not limited to, office buildings and courthouses, but not including jails, place of juvenile detention, workhouses, or any other detention facility as defined in Section 2921.01 of the Revised Code. (Emphasis added.) R.C. 2744.01(F) clearly defines appellee as a "political subdivision" and R.C. 2744.01(C)(2)(h) clearly defines appellee's operation of a "workhouse" as a government function. Hence, none of the exceptions to immunity listed in R.C. 2744.01(B) supra, - 4 - apply in this case. Accordingly, in order to withstand a motion for summary judgment, appellant must demonstrate that appellee's employees were not merely negligent in providing medical care for him during his incarceration but that they acted in a wanton or reckless manner. See, R.C. 2744.03(A)(5). Acting in a "wanton or reckless manner" is defined as perversely disregarding a known risk, or acting or intentionally failing to act in contravention of a duty, knowing or having reason to know of facts which would lead a reasonable person to realize that such conduct creates an unreasonable risk of harm substantially greater than the risk necessary to make the conduct negligent. See, Thompson v. Mc Neill (1990), 53 Ohio St.3d 102, 104-105. Appellant essentially argued in his brief in opposition that appellee was on notice of his pre-existing heart condition and need for medication when he began serving his sentence on the afternoon of June 17, 1992. Appellant further argues that appellee's employees' failure to provide him with medication until 8 p.m. on June 20, 1992 constituted wanton and reckless conduct. However, appellant's medical experts testified that they could find no fault 1 with Dr. Cotton's decision to observe the appellant rather than prescribe medication for him because the appellant could not identify his medication or the name of his treating physician for Dr. Cotton on June 18th, because the examination Dr. Cotton 1 Dr. Cotton examined the appellant on June 18, 1992, the day after he commenced serving his sentence. - 5 - 2 performed was completely normal and because appellant failed to complain or request medical attention on June 18th and 19th. Appellant's experts also stated that they could find no fault with Dr. Cotton's order to administer Lasix, a diuretic, on Saturday, June 20th at 8:00 p.m., after a security guard called her indicating that the appellant had complained to him of shortness of breath. Nor could such experts find fault with appellee's staff for admitting the appellant to the infirmary at 2:25 a.m. on June 21st or for transporting him to Suburban General Hospital at 2:55 a.m. when he continued to complain of shortness of breath. Appellant's failure to set forth triable facts with respect to negligent conduct necessarily precludes him from setting forth triable facts with respect to reckless conduct. There is no evidence in the record to suggest that appellee's employees intentionally or deliberately withheld treatment. While appellant argues that he told appellee that he was on Capoten and Lasix, his deposition demonstrates that such alleged communication was at best, equivocal and was entirely unspecific with respect to whether medical personnel were informed. This is evidenced by the following exchange: Q: When you arrived there after you were sentenced ... did you speak with any personnel of the workhouse? A: Personnel? How would I know who worked there? 2 Dr. Cotton testified that appellant's lungs were clear; that his heart sounds were normal and that she observed no ankle edema when she examined him on June 18th. - 6 - Q: Did you speak with any guards or administrative personnel? A: No. No Guards. Q: Do you remember speaking with Miss or Mrs. Mitchell? A: No, sir. * * * Q: Were you on sleeping medications at the time you were admitted into the House of Corrections? * * * A: I don't know sir. I don't remember. Q: Did you tell Miss Mitchell that you were on sleeping medications? A: I don't remember even speaking to Miss Mitchell, sir. Q: Did you speak to any House of Corrections personnel prior to being placed in your cell? A: If I did any talking with anyone, it was before I was placed in the cell. Q: Did you tell them - - you told them that you were on sleeping medications, didn't you? A: No. I told them I was on Capoten and Lasix, sir. (Depo. 23, 24) In order for the appellee to be on notice with respect to appellant's medications, appellant must establish that he told appellee's medical staff that he was on these medications. However, he has failed to demonstrate this. Dr. Cotton and Nurse Tillman affirmatively stated in their depositions that appellant's physical examination was normal and that the appellant was unable to identify his doctor, his medications or their dosage when they examined him. In light of such circumstances, appellee's decision - 7 - to initially observe the appellant was determined by appellant's medical experts to be non-negligent. When appellee was informed of appellant's shortness of breath on June 20, 1992, appropriate care was immediately administered. Hence, appellant has failed to demonstrate that appellee conducted itself in a manner that revealed a perverse disregard of a known risk. See, Thompson, supra. Hence, no genuine issue of material fact remains with respect to whether appellee's medical staff acted wantonly or recklessly in caring for the appellant during his incarceration. The trial court did not err in granting summary judgment in favor of the appellee. Accordingly, the judgment of the trial court is affirmed. - 8 - It is ordered that appellees recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., AND NUGENT, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .