When Government Employees Act Recklessly, Immunity Ends: The Ohio Supreme Court's Smathers Decision

Published January 11, 2023 · Ohio Supreme Court

A two-year-old girl died of dehydration in an overheated upstairs room. Weeks earlier, hospital doctors had written that the county children's services agency cleared her to go home despite what they called an "overwhelming amount of evidence" of abuse and neglect. When her grandmother sued the caseworkers, the trial court decided the workers were immune and ended the case before a jury ever heard it.

Just before Christmas, the Supreme Court of Ohio said that was wrong. Its decision in Smathers v. Glass, Slip Opinion No. 2022-Ohio-4595, decided December 22, 2022, grows out of a heartbreaking set of facts, but the rule it announces reaches every Ohioan hurt by a public employee: a judge may not decide disputed facts in the government's favor to end a case early.

What happened to Harmony Carsey

The facts below come from the evidence described in the Supreme Court's opinion, viewed, as the law requires at this stage, in the light most favorable to the family.

In November 2015, Perry County Children's Services received a report that a two-year-old named Harmony was being kept in a second-floor bedroom because her mother could not handle her. Days after a caseworker's home visit, Harmony collapsed and was taken to the hospital, then flown to a pediatric intensive-care unit. Doctors documented bruises, a severe diaper rash, and an emaciated appearance. Physicians later testified that they would have told the agency exactly why the child had been admitted: suspected abuse and neglect.

Harmony was discharged to her parents. The caseworker did not send the hospital a records request until roughly a month later, and the agency's own executive director agreed in a deposition that the delay was "troublesome." Caseworkers saw Harmony in her mother's home twice in December and looked at her bedroom without noting any concern. After the hospital records finally arrived, about a week passed with little action. On January 8, 2016, Harmony was found dead in her mother's home. It was undisputed that she died of dehydration after being left in an overheated room without fluids.

Her paternal grandmother, Tammy Smathers, filed a wrongful-death suit. The agency itself was dismissed on immunity grounds, and the case went forward against the executive director and three caseworkers.

How the lower courts got it wrong

Ohio law gives employees of cities, counties, school districts and other political subdivisions broad immunity from ordinary negligence claims. But R.C. 2744.03(A)(6)(b) removes that protection when the employee's acts or omissions were "with malicious purpose, in bad faith, or in a wanton or reckless manner."

The caseworkers moved for summary judgment. Summary judgment is a pretrial ruling that ends a case without a trial because there is no real dispute about the important facts. The trial court granted it, but only after choosing between conflicting pieces of evidence. It "found," for example, that Harmony had been with her father and grandmother, not her mother, from Thanksgiving until Christmas, and it accepted a caseworker's claim that no one at the hospital had told her about suspected abuse. The Fifth District Court of Appeals then deferred to those findings.

The Supreme Court, in an opinion by Justice Jennifer Brunner, reversed. The Court put the point simply:

"The trial court could not, under Civ.R. 56(C), determine a fact. Its duty was to determine whether the fact was in dispute."

The Court also held that an appeals court reviews summary judgment "de novo," meaning from scratch, with no deference to the trial judge's view of the evidence.

The rule: could reasonable minds find recklessness?

The most important part of Smathers for injured people is the standard it sets for immunity cases. On a summary-judgment motion, the question is not whether the government employees actually acted recklessly. It is whether reasonable minds could find that they did, viewing the facts in the injured party's favor. Only when the undisputed evidence shows the conduct was not reckless or wanton should immunity be decided before trial.

The Court repeated its definition of recklessness: "conscious disregard of or indifference to a known or obvious risk of harm to another," substantially greater than ordinary negligence. Applying that test, the Court concluded a fact-finder could find recklessness at several points: allowing the discharge despite the doctors' concerns, waiting a month for the medical records, failing to follow up with the physicians, and viewing the bedroom without concern three weeks before Harmony's death. Because genuine issues of fact existed, the case was sent back to the trial court for trial. Two justices agreed the Fifth District used the wrong standard but would have returned the case to the court of appeals instead.

The decision does not say the caseworkers are liable. That question now goes back to the trial court. What it guarantees is that the family gets its chance to prove it.

Why this matters well beyond children's services

The same immunity statute covers police officers, firefighters, EMS crews, public-works employees, school staff and county workers of every kind. Government defendants routinely file early summary-judgment motions asking a judge to accept their version of events. Smathers tells trial courts they may not do that when the evidence conflicts.

We wrote about a related 2021 decision, Maternal Grandmother v. Hamilton County, which addressed how much a family has to allege at the start of a case against caseworkers. Smathers addresses the next stage: once the evidence is gathered, genuine disputes about it belong to a jury.

A few practical points follow:

• Records win these cases. Here, the agency's own case notes, the hospital chart, and the doctors' depositions created the factual disputes that defeated immunity on summary judgment. Getting those records early is critical.
• Recklessness is usually a fact question. Delay, ignored warnings, and failure to follow up can all be evidence of conscious disregard of a known risk.
• The deadline still runs. A wrongful-death claim generally must be filed within two years of the death, and claims against political subdivisions carry their own two-year limit. Our guide chapter on deadlines and the timeline of an Ohio injury case explains both.

Immunity questions also come up in crash cases involving government vehicles, where a separate set of rules applies. See our recent post on the new law requiring uninsured-motorist coverage to respond when a government driver causes a crash.

What this means for you

If a public employee's choices contributed to a serious injury or death in your family, do not accept "they're immune" as the final word. Ohio law strips that immunity for reckless or wanton conduct, and after Smathers, a judge cannot resolve conflicting evidence to protect the employee before trial. The strength of these cases depends on what the records show, which is why we start gathering them right away. Our page on claims against the government in Ohio explains the immunity rules in more detail, and our wrongful death practice page describes how we handle these cases for families.