COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68914 JAMES R. SLIVENIK, ADMINISTRATOR,: ET AL. : : JOURNAL ENTRY Plaintiff-Appellants : : AND vs. : : OPINION DR. PHILLIP DUKES, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 22, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-256326 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: For Defendant-Appellees: PATRICK D. QUINN STEPHANIE TUBBS JONES 21801 Lakeshore Blvd. Cuyahoga County Prosecutor Euclid, Ohio 4412 KIRK L. PERRY, Assistant 8th Floor - Justice Center PATRICIA A. SCHRAFF 1200 Ontario Street Peterson, Ibold & Wantz Cleveland, Ohio 44113 401 South Street Chardon, Ohio 44024-1406 PATRICK M. DUKES Assistant Director of Law City of Cleveland City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 ALMETA A. JOHNSON 13308 Euclid Avenue East Cleveland, Ohio 44112 JONATHAN L. STARK JOHN S. CHAPMAN 1525 National City Bank Bldg. 629 Euclid Avenue Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: The appellants, Gary Slivenik and James R. Slivenik, appeal from the trial court's entry of summary judgment in favor of appellees, Northeast Community Mental Health Center, its former director, Dr. Rajandra K. Misra, and its former employee, Felton Ross, on claims for wrongful death and intentional, reckless or negligent placement of their mother, Angela Slivenik, who died as a result of being scalded in a bathtub of hot water while a resident at the Lillian Jones Group Home, a contract agency of Northeast Community Mental Health Center. The Cuyahoga County Community Mental Health Board contracts with Northeast Community Mental Health Center to provide coordination of psychiatric and medical care, and assistance in obtaining housing and transportation for them in need. Northeast in turn contracts with various service providers, one of which is the Lillian Jones Group Home. The decedent, Angela Slivenik, began receiving services from Northeast in 1979, and in the fall of 1989, at the request of the Sliveniks, Northeast located an opening for Mrs. Slivenik at the Lillian Jones Group Home. After she and her son, James, visited the group home, Mrs. Slivenik became a resident there in August of 1990. On July 15, 1991, Anthony Goshay, an employee of Lillian Jones, placed Mrs. Slivenik in scalding bathwater for three hours - 3 - causing her to suffer second and third degree burns resulting in her death nineteen days later. For his involvement in this activity, a jury convicted him of involuntary manslaughter through patient abuse and the court sentenced him to the penitentiary for a term of seven to twenty-five years. On August 6, 1993, the appellants, James Slivenik, individually and as administrator of his mother's estate, and Gary Slivenik, filed suit against the appellees, alleging intentional, reckless and/or negligent placement of a patient as well as wrongful death. Appellees in responding to the suit, filed a motion for summary judgment which appellants did not oppose. The trial court, therefore, on May 9, 1994, granted the appellees' motion for summary judgment. Thereafter, the record reflects, on May 13, 1994, appellants filed a motion for leave to file instanter a brief in opposition to summary judgment. Also, at a May 18, 1994 pretrial, appellants learned that appellees' summary judgment had been granted and nine days later moved to vacate but the trial court ultimately denied that motion on July 22, 1994. Appellants timely filed their notice of appeal from the trial court's granting of summary judgment for the appellees and denial of Appellant's motion for relief from judgment and have assigned two errors for our review. - 4 - I. The first assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES NORTHEAST COMMUNITY MENTAL HEALTH CENTER, RAJANDRA MISRA, AND FELTON ROSS. Appellants argue that appellees have certain duties emanating from R.C. 5122.29 to guarantee rights to mentally infirm patients. Because questions of fact exist regarding whether appellees breached those duties and whether the act of Anthony Goshay was foreseeable, appellants believe the trial court erred in granting summary judgment. Appellees, on the other hand, contend that no issue of material fact existed as they owed no duty to Angela Slivenik and even if they owed a duty to her, the intervening criminal act of Anthony Goshay, proximately caused her death thereby relieving them of any liability for her death. The issue then for our resolution is whether the trial court properly granted summary judgment in this case. We begin our analysis with Civ. R. 56(C) which states in pertinent part: ***. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interroga-tories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipu-lations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ***. - 5 - Further, subsection (E) states in part: ***. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, *** must set forth specific facts showing that there is a genuine issue for trial. ***. The Ohio Supreme Court, in considering this issue stated in Jackson v. Alert Fire & Safety Equip. (1991), 58 Ohio St.3d 48, at 51: In reading section (C) in association with section (E), it can be readily seen that once a party moves for summary judgment and has supported his or her motion by sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as provided in section (C) setting forth specific facts explaining that a genuine issue for trial exists. (Emphasis added.) And, in Wing v. Anchor Media (1991), 59 Ohio St.3d 108, the court held in its syllabus: 3. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial (Celotex v. Catrett [1986], 477 U.S. 317 approved and followed.) It is axiomatic that in order to prove a prima facie case of negligence, four elements must be demonstrated: duty, breach, proximate cause and resulting injury. While appellants correctly identify R.C. 5122.29 as detailing rights of patients, no specific duty of appellees toward Mrs. Slivenik is contained among those rights. From our review of the pleadings filed in the trial court which are contained in the record, appellees argued the - 6 - deliberate criminal act of Anthony Goshay constituted an intervening act which precludes a finding that appellees proximately caused injury to plaintiff's decedent. We further note that since appellant failed to timely respond to the motion, the trial court correctly followed Jackson, supra, and properly entered summary judgment in this case. We find no merit to this assigned error and it is therefore overruled. II. The second assignment of error states: THE TRIAL COURT ERRED IN REFUSING TO VACATE THE SUMMARY JUDGMENT ENTERED IN FAVOR OF APPELLEES NORTHEAST COMMUNITY HEATH CENTER, RAJANDRA MISRA, AND FELTON ROSS. Here, appellants urge that the trial court erred in denying the Civ.R. 60(B) motion for relief from judgment because they have a meritorious claim, and their failure to timely respond to the pending motion for summary judgment constitutes excusable neglect. The Ohio Supreme Court has considered these issues in GTE Automatic Electric, Inc. v. ARC Industries, (1976), 47 Ohio St.2d 146, and held in its syllabus: 2. To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time ***. - 7 - In this instance, then, in accord with GTE, supra, appellants must demonstrate their right to relief. Two bases exist for denying this appeal: one, appellants have failed to demonstrate a meritorious claim as set forth in our discussion under the first assignment of error, and, two, failure to respond to the motion for summary judgment is not excusable neglect. In GTE, supra, the court considered this question and held in its syllabus: 4. As a general rule, the neglect of a party's attorney will be imputed to the party for the purposes of Civ. R. 60(B)(1). (Link v. Wabash RR Co, 370 U..S. 626, followed.) While the facts in GTE differ from those presented in this case, the requirements to prevail on a Civ.R. 60(B) motion remain constant. Appellants have failed to demonstrate an ability to meet the requirements to prevail on such a motion and for those reasons we find this assignment of error to be without merit and it is overruled. Accordingly, the judgment of the trial court is affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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. PORTER, P.J., NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 journaliza- .