[Cite as Manter v. CPF Senior Living – Northgate Park L.L.C., 2024-Ohio-1385.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
PAUL J. MANTER, : APPEAL NO. C-230478 TRIAL NO. A-2104337 Plaintiff-Appellant, : O P I N I O N. vs. :
CPF SENIOR LIVING – NORTHGATE : PARK LLC, : GRACE MANAGEMENT, INC., : and : NORTHGATE PARK, LLC,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: April 12, 2024
Ferris & Manter, and James K. Ferris, for Plaintiff-Appellant,
Plunkett Cooney, PC, and Christina L. Corl, for Defendants-Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Plaintiff-appellant Paul Manter appeals from the trial court’s grant of
summary judgment in favor of defendants-appellees CPF Senior Living – Northgate
Park, LLC, Grace Management, Inc., and Northgate Park, LLC, (collectively,
“Northgate”). Paul1 asserts six assignments of error.
{¶2} First, he argues that the trial court erred in granting summary judgment
in favor of Northgate when genuine issues of material fact existed for trial. Second, he
argues that the trial court erred as a matter of law in concluding Northgate was not a
nursing home under R.C. Chapter 3721, but rather a residential facility under R.C.
5119.34 and 5123.19. Third, he argues that the trial court erred as a matter of law in
finding he failed to identify a source of duty as to his negligence claim. Fourth, he
argues that the trial court erred in finding Northgate’s breach of a “Residence and
Services Agreement” (“RSA”) could not constitute a breach of duty under his
negligence claim. Fifth, he argues that genuine issues of material fact existed as to his
breach of contract claim. And sixth, he argues that the trial court erred in finding his
claim for intentional infliction of emotional distress (“IIED”) failed.
{¶3} We overrule Paul’s first assignment of error, because the specific factual
disputes Paul raises were immaterial to resolving his claims. We sustain Paul’s second
assignment of error, because the trial court erred as a matter of law in finding that
Northgate was licensed under R.C. 5119.34 and 5123.19. Further, because the rights
described in R.C. 3721.13 may be a source of duty Northgate owed Paul independent
of their contractual obligations, we sustain Paul’s third assignment of error. But we
overrule Paul’s fourth assignment of error, because a breach of contract does not
1 Because Paul and his son, Aaron Manter, share a last name, we refer to them by their first names.
2 OHIO FIRST DISTRICT COURT OF APPEALS
create a source of duty for a tort claim under Ohio law. We sustain Paul’s fifth
assignment of error, because genuine issues of material fact existed as to the kind of
care Paul needed and actually received. Lastly, we overrule Paul’s sixth assignment of
error, because Northgate’s conduct did not rise to the level of extreme and outrageous
conduct required to sustain an IIED claim.
{¶4} The judgment of the trial court is accordingly affirmed in part and
reversed in part, and the cause is remanded for further proceedings on Paul’s
remaining claims.
Factual and Procedural Background
{¶5} Paul is in his mid-70s and suffers from hypertension, hyperlipidema,
chronic obstructive pulmonary disease, congestive heart failure, and neuropathy in his
extremities. He also struggled with alcoholism. Due to these health ailments, Paul’s
son, Aaron Manter, convinced him to move into an assisted living facility.
{¶6} On October 5, 2018, Paul entered into the RSA with Northgate. The RSA
identified Northgate as an assisted living community and specified the following:
5.1 Observation and Consultation.
Community staff will observe your health status to identify and help you
respond to your dietary, social and personal needs by way of a nursing
assessment. Consultations will be determined by the Wellness Director.
***
5.5 Personal Assistance and Care
[Northgate] provides different levels of personal assistance and care,
depending on your needs. Upon admission to [Northgate], the staff
performed a comprehensive assessment of your needs. We determined
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with you, in accordance with [Northgate’s] Resident Assessment, that
your appropriate care service package is Level ONE * * * Staff will
reassess you regularly to determine the level of personal
assistance and care that you need.
5.7 Excluded and Non-Covered Services.
This Agreement does not entitle you to receive any services for * * * any
condition requiring services that [Northgate] is not licensed, staffed, or
equipped to provide, or does not routinely provide.
5.8 Skilled Nursing Care
We do not provide Skilled Nursing Care at the Northgate Park except
the Administration of medication hypodermically or orally by the
Community’s Licensed staff. Any other Skilled Nursing Care must be
provided by an Outside provider. Per Ohio’s Administrative Code Rule
3701-17-50, the Term “Skilled Nursing Care” shall mean procedures
that require technical skills [and] Knowledge beyond those the
untrained possesses and that are commonly employed in providing for
the physical, mental and emotional needs of the ill or otherwise
incapacitated. ‘Skilled Nursing Care’ includes, but is not limited to, the
following:
Objective observation of changes in the resident’s condition as a means
of analyzing and determining the nursing care required and the need for
further medical diagnosis and treatment
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(Emphasis added.)
{¶7} Initially, under Paul’s “Level of Care Evaluation” (“care plan”)
Northgate was not required to assist Paul with bathing. Instead, Care Connection of
Cincinnati, LLC, (“Care Connection”) a home healthcare provider, would assist Paul
with showering twice a week. Later, because Paul was not bathing himself, his care
plan was modified to include the following: “Requires stand-by or hands-on
assistance from caregiver (wash back and feet) for bath/shower 2-3 times a week[.]
Sundays and Thursday[s] 2nd Shift.” (Emphasis added.)
{¶8} On December 29, 2019, Paul was admitted to the hospital after suffering
a fall at Northgate. An ulcer was discovered on Paul’s left foot, which continued to
deteriorate during his stay at the hospital. After several failed procedures to salvage
his left foot, Paul’s left leg was amputated below the knee on February 5, 2020.
{¶9} Paul filed his complaint against Atria Northgate Park, LLC, CPF Senior
Living – Northgate Park, LLC, HCP Cincinnati OH OPCO, LLC, Grace Management,
Inc., Northgate Park Senior Living, and Care Connection on December 20, 2021. He
alleged claims of negligence, spoilation, breach of contract, IIED, unjust enrichment,
and violation of his rights under R.C. 3721.13 and 3721.14. Defendants HCP Cincinnati
OH OPCO, LLC, Atria Northgate Park, LLC, and Care Connection were later dismissed
with prejudice.
{¶10} The remaining parties conducted discovery, including the depositions
of Paul, Aaron, and current and former Northgate staff. In his deposition, Paul
testified that due to his previous struggles with alcoholism, he had very little memory
of what transpired during his time at Northgate, including his fall which led to his
hospitalization. He recalled Northgate staff taking him to shower, observing him
5 OHIO FIRST DISTRICT COURT OF APPEALS
bathing, and cleaning his back at times. He admitted that he probably refused baths.
He also described the Northgate staff as courteous and kind. He believed they had a
tough job to do, and he never held anything against them.
{¶11} Aaron also testified to Paul’s memory issues. He testified that Paul
had short-term memory loss due to his alcoholism. In January 2019, Aaron received
a call from Northgate staff informing him that Paul was not bathing appropriately and
that Paul would be bathed twice a week by Northgate staff. In March 2019, Paul’s
primary care physician informed Paul that he would require wound care. According
to Aaron, the wounds developed on Paul’s feet from water retention that swelled and
caused Paul’s skin to crack. Though Care Connection was dressing these wounds for
Paul, Aaron was not aware that Care Connection was involved in Paul’s care until he
requested nursing notes from Northgate after Paul’s hospitalization.
{¶12} Aaron frequently visited Paul at Northgate. He often noticed a bad odor
from Paul during his visits, which Aaron thought might have been because Paul did
not do his laundry regularly. Paul was typically wearing socks and shoes when Aaron
visited him. But on one occasion, Aaron noticed Paul jerked when Aaron grabbed his
feet to change Paul’s socks. And on another occasion, Aaron brought Paul new shoes,
and Paul complained that it felt as though something was in his shoe. Aaron, however,
did not speak to anyone at Northgate regarding these issues.
{¶13} Rosemarie Caldwell, executive director during Paul’s time at Northgate,
testified that Northgate was a residential care facility, not a nursing home. According
to Caldwell, Northgate had on staff a wellness director, nurses to administer
medication, and resident assistants to carry out resident care plans. Caldwell could
not explain why there were no nursing notes for Paul between January 2019 and
6 OHIO FIRST DISTRICT COURT OF APPEALS
August 2019 nor any documentation of Paul’s bathing schedule. She agreed, however,
that if Paul was noncompliant with bathing, that was something she would expect to
see in the nursing notes.
{¶14} Stephanie Watkins, former wellness director at Northgate, testified that
charting for residents was typically done only when something was abnormal. She
also agreed that bathing records should have been included when charting for a
resident. She testified that Paul’s care plan was modified to include bathing because
Northgate staff smelled an odor outside of his unit. She made this modification after
speaking to both Paul and Aaron. She admitted that bathing was not a skilled nursing
task. And she maintained that as an assisted living facility, Northgate resident
assistants would not do skin checks or monitor wounds.
{¶15} When questioned as to the definition of stand-by bathing assistance,
Watkins testified that was limited to reminding residents to bathe and that resident
assistants would do nothing further to assist in bathing. She also clarified that Paul
was receiving stand-by bathing assistance, not hands-on bathing assistance.
{¶16} But Karen Kuntz, a staff nurse at Northgate, testified that stand-by
assistance meant encouraging the resident to shower and standing nearby to ensure
the resident did not fall. She testified that hands-on bathing assistance would entail
physically bathing the resident. She did not, however, find the gap in nursing notes to
be odd.
{¶17} Dr. Kevin D. Nolan, M.D., a vascular surgeon, opined on behalf of
Northgate. He opined that Northgate’s staff would not have the training to either
identify the ulcer on Paul’s left foot or understand that he should have been referred
for medical treatment. He further opined that Paul’s left leg was amputated because
7 OHIO FIRST DISTRICT COURT OF APPEALS
of his poorly controlled vascular disease leading to deterioration of the ulcer. And he
opined that Paul’s foot was salvageable upon arrival at the hospital.
{¶18} Dr. Steven Levin, M.D., a vascular, cardiac, and general surgeon, offered
an opinion on behalf of Paul. He opined that Paul’s left leg could have been saved if
he had received the basic hygiene care he had contracted for by Northgate. He also
opined that if Aaron had been notified that Paul continued to refuse bathing, he could
have spoken with Paul regarding the issue.
{¶19} On December 8, 2022, Northgate moved for summary judgment, which
the trial court granted. In its decision, the trial court reasoned that Paul’s negligence
claim was encompassed by his breach of contract claim. It further found that Paul’s
spoliation claim failed, because Northgate staff testified that regular note taking was
not standard practice. It also found that Northgate did not breach its contractual
duties regarding bathing, because Paul had only contracted for stand-by bathing
assistance, which he was provided, and Paul’s testimony regarding bathing was
unreliable due to his medical conditions. It concluded Paul’s IIED claim failed,
because Paul testified that Northgate staff were nothing but kind and courteous
towards him, which hardly met the high bar of extreme and outrageous conduct. It
also found that in the absence of allegations of fraud or bad faith, Paul’s unjust
enrichment claim was without merit. Lastly, it found that Northgate was not a nursing
home as defined in R.C. Chapter 3721, but rather was a residential facility under R.C.
5119.34 and 5123.19. Accordingly, Paul was not afforded the same protections as a
resident of a home under R.C. 3721.01(A)(1)(a).
{¶20} Paul now appeals.
8 OHIO FIRST DISTRICT COURT OF APPEALS
Standard of Review
{¶21} Summary judgment decisions are reviewed de novo. Al Neyer, LLC v.
Westfield Ins. Co., 2020-Ohio-5417, 163 N.E.3d 106, ¶ 13 (1st Dist.). Summary
judgment is proper under Civ.R. 56(C) where “(1) no genuine issue of material fact
remains, (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
construing the evidence most strongly in favor of the nonmoving party, that
conclusion is adverse to the party against whom the motion for summary judgment is
made.” Id. at ¶ 14. The moving party has the initial burden of informing the court of
the basis for the motion and identifying the portions of the record that set forth specific
facts demonstrating entitlement to summary judgment. Id. at ¶ 15. If the moving party
fails to meet its burden, summary judgment is not appropriate. Id.
Genuine Issues of Material Fact
{¶22} In his first assignment of error, Paul argues that the trial court erred in
granting summary judgment in favor of Northgate, because there were genuine issues
of material fact for trial. Specifically, Paul contends that the trial court misstated the
size of his wound and how many months elapsed between hospitalization and
amputation.
{¶23} But “[a] fact is material if it might affect the outcome of the suit under
the applicable substantive law.” (Internal quotation marks omitted.) Cirino v. Bur. of
Workers’ Comp., 2021-Ohio-1382, 171 N.E.3d 840, ¶ 22 (10th Dist.). Neither the size
of Paul’s wound nor the amount of time that elapsed between hospitalization and
amputation affects the outcome of any of his claims. Indeed, there were genuine issues
of material fact that existed as to Paul’s claims, as will be discussed in detail below.
9 OHIO FIRST DISTRICT COURT OF APPEALS
The facts that Paul raises in his first assignment of error, however, are immaterial.
Accordingly, we overrule Paul’s first assignment of error.
Classification of Northgate
{¶24} Next, Paul argues the trial court erred as a matter of law in concluding
Northgate was not a nursing home under R.C. Chapter 3721, but rather a residential
facility under R.C. 5119.34 and 5123.19.
{¶25} Northgate’s license states that it is a residential care facility. The license
further states that it was issued in accordance with R.C. Chapter 3721, which governs
nursing homes and residential care facilities, and with Ohio Adm.Code 3701-17, which
also governs nursing homes. Additionally, Caldwell testified that Northgate is a
residential care facility.
{¶26} R.C. 3721.01(A)(1)(a) provides that a “home” includes nursing homes
and residential care facilities. R.C. 3721.01(A)(7) defines a “residential care facility”
as a facility that provides accommodations for unrelated individuals and supervision
and personal care for these individuals who are dependent by reason of age or physical
or mental impairment, either with or without skilled nursing care. Thus, a residential
care facility can be classified as a home without providing skilled nursing care under
R.C. 3721.01(A)(7).
{¶27} Despite the fact that its license makes no mention of R.C. 5119.34 and
5123.19, Northgate maintains that it is licensed under these statutory sections and not
under R.C. Chapter 3721. R.C. 5119.34 and 5123.19 govern residential facilities for
adults with mental illnesses and developmental disabilities respectively. Northgate
argues that it is licensed under these statutory sections, because R.C. 3721.01(A)(1)(c)
specifies that a “home” does not include residential facilities licensed under R.C.
10 OHIO FIRST DISTRICT COURT OF APPEALS
5119.34 and 5123.19 and because it does not provide skilled nursing care. Neither
argument has merit.
{¶28} As we discussed above, R.C. 3721.01(A)(7) explicitly states that a
residential care facility, which is how Northgate is classified on its license, does not
need to provide skilled nursing care to qualify as a home. Thus, even though Northgate
does not provide skilled nursing care, it can still qualify as a home. Further, while R.C.
3721.01(A)(1)(c) does specify that residential facilities under R.C. 5119.34 and 5123.19
do not qualify as a home, Northgate does not explain how this exemption is applicable
to it. In its summary judgment motion, Northgate included an affidavit from its
current executive director, Elizabeth Dinnesen, in which she averred that it was
“clearly stated” on Northgate’s license that it was licensed under R.C. 5119.34 and
5123.19. Again, Northgate’s license does not reference these statutory sections at all.
And aside from this affidavit, Northgate provided no support for its position that it
was licensed under R.C. 5119.34 and 5123.19.
{¶29} Therefore, because the evidence before the trial court did not support a
finding that Northgate was licensed under R.C. 5119.34 and 5123.19, the trial court
erred a matter of law in making this determination. Because it misclassified
Northgate, the trial court therefore erred in granting summary judgment to Northgate
on Paul’s claim under R.C. 3721.13 and 3721.14.2 Paul’s second assignment of error is
accordingly sustained.
2 In making this determination, we do not reach the question of whether Northgate is a “home” under the statutory definition set forth in R.C. 3721.01(A)(1)(a).
11 OHIO FIRST DISTRICT COURT OF APPEALS
Negligence
{¶30} In Paul’s third assignment of error, he argues the trial court erred as a
matter of law in finding he failed to identify a source of duty as to his negligence claim.
And in his fourth assignment of error, he argues the trial court erred in finding
Northgate’s breach of the RSA could not constitute a breach of duty under his
negligence claim. Because both assignments of error consider the source of duty, we
consider them together.
{¶31} Under R.C. 3721.13, residents of a home, as defined by R.C.
3721.01(A)(1)(a), are afforded certain rights. And under R.C. 3721.17(G)(1), a resident
whose rights are violated has a cause of action against the home committing the
violation. If the resident can show, by a preponderance of the evidence, that the
violation of his rights resulted from a negligent act or omission of the home and that
violation was the proximate cause of the resident’s injury, the resident may recover
compensatory damages. R.C. 3721.17(G)(2)(a).
{¶32} But, while generally a tort claim based upon the same underlying
actions cannot coexist with the contract action, such a tort claim is actionable if the
breaching party also breached a duty owed independent of the contract. Evans
Landscaping, Inc. v. Stenger, 2011-Ohio-6033, 969 N.E.2d 1264, ¶ 16 (1st Dist.).
{¶33} Here, Paul maintains that, because he was afforded the rights of a
resident of a home under R.C. 3721.13, Northgate owed him a duty independent of the
RSA. As we held above, the trial court erred in finding Northgate was licensed under
R.C. 5119.34 and 5123.19. If on remand the trial court determines Northgate is a
“home” under R.C. 3721.01(A)(1)(a), then Paul is entitled to the rights defined under
R.C. 3721.13. And if Paul is entitled to those rights, then he did identify a source of
12 OHIO FIRST DISTRICT COURT OF APPEALS
duty for his negligence claim beyond Northgate’s alleged breach of the RSA. But Paul
may not rely on a breach of the RSA alone as a source of duty. See id. at ¶ 16.
{¶34} Therefore, we sustain Paul’s third assignment of error, because the trial
court erred as a matter of law in finding he failed to identify a source of duty as to his
negligence claim. But we overrule Paul’s fourth assignment of error, because under
Ohio law, a breach of contract does not create a tort claim. The trial court’s grant of
summary judgment as to Paul’s negligence and resident’s rights claims in favor of
Northgate is accordingly reversed.
Breach of Contract
{¶35} In Paul’s fifth assignment of error, he argues genuine issues of material
fact existed as to his breach of contract claim.
{¶36} “The elements of a breach of contract claim include: (1) the existence of
a contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4)
damages resulting from the breach.” (Internal quotation marks omitted.) Ma v.
Cincinnati Children’s Hosp. Med. Ctr., 2023-Ohio-1727, 216 N.E.3d 1, ¶ 15 (1st Dist.).
Here, the parties focus on the third element: whether Northgate breached the RSA
and accompanying care plan.
{¶37} As discussed above, Paul’s care plan was modified to include the
following: “Requires stand-by or hands-on assistance from caregiver (wash back
and feet) for bath/shower 2-3 times a week[.] Sundays and Thursday[s] 2nd Shift.”
(Emphasis added.) Northgate contends Paul had only contracted for stand-by bathing
assistance and that stand-by bathing assistance was limited to reminding Paul to
bathe. Northgate acknowledges its staff did not consistently describe what stand-by
bathing assistance meant. Instead, Northgate argues “regardless of which description
13 OHIO FIRST DISTRICT COURT OF APPEALS
[Paul] emphasizes, his own deposition testimony makes clear that the duty was
satisfied.”
{¶38} But the deposition testimony regarding Paul’s bathing routine actually
creates a genuine issue of material fact. While Watkins testified stand-by bathing
assistance was limited to reminding Paul to bathe, Kuntz testified that it included
encouraging Paul to bathe and standing nearby to ensure he did not fall. Moreover,
Paul himself recalled Northgate staff being nearby when he showered and even
washing his back.
{¶39} In an attempt to resolve the dispute of fact as to the bathing provision,
the trial court discredited Paul’s testimony given his memory issues. But later, it relied
on Paul’s recollection that Northgate staff were nothing but kind and courteous to
conclude his IIED claim was without merit. On a motion for summary judgment, it is
not the duty of the trial court to weigh the credibility of the witnesses. See Grubach v.
Univ. of Akron, 10th Dist. Franklin No. 19AP-283, 2020-Ohio-3467, ¶ 40 (“A court
cannot weigh credibility when considering evidentiary material presented in favor of,
or in opposition to, a summary judgment motion.”). “Such functions are for the trier
of fact, not for a judge ruling on a motion for summary judgment.” Id. Thus, at the
summary judgment stage, the trial court should not have discredited parts of Paul’s
testimony as a means of resolving the factual dispute that existed as to the bathing
provision.
{¶40} Not only were there genuine issues of material fact as to what kind of
bathing assistance Paul actually received, but there were also material disputes of fact
regarding the level of care Paul needed. The RSA clearly stated that, “Staff will reassess
you regularly to determine the level of personal assistance and care that you need.” In
14 OHIO FIRST DISTRICT COURT OF APPEALS
fact, this language in the RSA appears to be precisely why Paul’s level of care was
modified to include bathing assistance. Caldwell testified that because staff smelled
an odor outside of Paul’s unit, she spoke with Paul and Aaron to modify Paul’s care
plan to include bathing.
{¶41} Thus, because genuine issues of material fact existed as to the kind of
care Paul needed and whether he was receiving the care he contracted for, we sustain
Paul’s fifth assignment of error and reverse the trial court’s grant of summary
judgment as to Paul’s breach of contract claim in favor of Northgate.
IIED
{¶42} Lastly, Paul argues the trial court erred in finding his IIED claim failed.
{¶43} “To state a claim for [IIED], the plaintiff must show that the defendant’s
conduct was so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly intolerable in
a civilized community.” FAP Properties XL, LLC v. Griffin, 1st Dist. Hamilton No. C-
210646, 2022-Ohio-3410, ¶ 24. Paul spoke highly of Northgate staff, describing them
as kind and courteous. He also testified they had a tough job to do and that he held
nothing against them. Further, Aaron did not testify to any extreme or outrageous
conduct by Northgate staff.
{¶44} As discussed above, Northgate’s actions may or may not have amounted
to a breach of contract and negligence. But its actions did not rise to the level of
extreme and outrageous conduct required to sustain an IIED claim. Paul’s sixth
assignment of error is therefore overruled and the trial court’s grant of summary
judgment in favor of Northgate as to his IIED claim is affirmed.
15 OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶45} We overrule Paul’s first assignment of error, because the factual
disputes he raised, namely the size of his ulcer and length of time between
hospitalization and amputation, were immaterial to resolving his claims. We sustain
Paul’s second assignment of error, because the trial court erred as a matter of law in
finding that Northgate was licensed under R.C. 5119.34 and 5123.19.
{¶46} Further, because Paul may be entitled to the rights described under R.C.
3721.13, which would be a source of duty Northgate owed him independent of the RSA,
we sustain Paul’s third assignment of error. But we overrule Paul’s fourth assignment
of error, because a breach of the RSA does not create a tort claim under Ohio law.
{¶47} We sustain Paul’s fifth assignment of error, because genuine issues of
material fact existed as to the kind of care Paul needed and actually received. Lastly,
we overrule Paul’s sixth assignment of error, because Northgate’s conduct did not rise
to the level of extreme and outrageous conduct required to sustain an IIED claim. We
remand the cause for further proceedings consistent with the law and this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.
ZAYAS, P.J., and WINKLER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.