[Cite as M.S. v. Harvey, 2014-Ohio-4236.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
M.S., A MINOR JUDGES: BY SASHA SALSGIVER, Hon. William B. Hoffman, P.J. HER MOTHER AND NEXT FRIEND Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. Plaintiff-Appellant Case No. 13CA105 -vs-
DAVID HARVERY, ET AL. OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2009-CV-0950
JUDGMENT: Affirmed in part, Reversed in part and Remanded
DATE OF JUDGMENT ENTRY: September 22, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees Dianna Kochheiser and Russell Harvey
DARRELL L. HECKMAN TERRENCE J. KENNEALLY Harris, Meyer, Heckman & Denkewalter SEAN M. KENNEALLY One Monument Square, Suite 200 River Terrace Building Urbana, Ohio 43078 19111 Detroit Road, Ste. 200 Rocky River, Ohio 44116
For Defendants-Appellees J. Hudson Thayer & Grace Brethren Church
DAVID HARVEY, PRO SE G. MICHAEL CURTIN #A582750 STUART D. BAKER P.O. Box 59 CURTIN & KMETZ, LLP Nelsonville, Ohio 45764 159 South Main Street, Suite 920 Akron, Ohio 44308 Richland County, Case No. 13CA105 2
Hoffman, P.J.
{¶1} Plaintiff-appellant M.S., a minor by Sasha Salsgiver, her mother and next
friend, appeals the November 8, 2013 Judgment Entry on Jury Verdict, which entered
judgment in her favor and against defendant-appellee David Harvey (“Harvey”) in the
amount of $175,000, and which memorialized the trial court’s granting directed verdict in
favor of defendants-appellees Dianna Harvey Kochheiser (“Kochheiser) and Russell
Harvey (“Russell Harvey”). Appellant also appeals the trial court’s March 1, 2011
Judgment Entry which granted summary judgment in favor of defendants-appellees J.
Hudson Thayer (“Pastor Thayer”) and Grace Brethren Church (“the Church”).
STATEMENT OF THE FACTS AND CASE
{¶2} Harvey and his wife, Carol Harvey, are the elderly parents of four adult
children, to wit: Kochheiser, Russell Harvey, Steven Harvey, and Ken Harvey.
Kochheiser and her husband, Jerry, have two daughters, Christine Kochheiser and
Kelly Kochheiser, who are adults. Russell Harvey and his wife, Laurie, have one
daughter, Jordan Harvey, who is also an adult.
{¶3} Harvey sexually abused Kochheiser when she was approximately 9 years
old. Kochheiser’s daughters, Christine Kochheiser and Kelly Kochheiser, were,
likewise, sexually abused by Harvey when they were 8 or 9 and 5 or 6 years old,
respectively. After her daughters disclosed Harvey’s abuse, Kochheiser contacted
Russell Harvey as his daughter Jordan was close in age and relationship with Christine
and Kelly. Russell Harvey learned Jordan had also been sexually abused by Harvey.
{¶4} As a result of their daughters' disclosures, Kochheiser, Russell Harvey,
and their spouses met with Pastor Thayer. Pastor Thayer is the pastor of the Church. Richland County, Case No. 13CA105 3
Harvey and Kochheiser attended the Church. Pastor Thayer suggested they handle
the matter within the family. Kochheiser, her husband, Russell Harvey, and his wife
then confronted Harvey. This occurred sometime during the early or mid-1990’s. No
outside authorities were ever contacted.
{¶5} In 1991, Ken Harvey married Yolanda Harvey. Yolanda Harvey had a
daughter, Sasha, who was then six years old. In 2001, Sasha married Joe Salsgiver.
Christine Kochheiser served as a bridesmaid. Kelly Kochheiser and Jordan Harvey
were the book attendants. The entire Harvey family attended the wedding. Ken and
Yolanda Harvey divorced sometime around 2002. Despite her mother's divorce, Sasha
maintained a relationship with Ken Harvey and the rest of the Harvey family, celebrating
birthdays and holidays together.
{¶6} Sasha gave birth to M.S on December 27, 2003. The Harvey family
attended the baby shower. After M.S. was born, Sasha returned to working full-time.
Rather than place M.S. in daycare, Sasha relied upon family to care for her daughter
while she worked. Initially, Harvey and his wife watched M.S. two or three days/week
while Sasha’s mother-in-law and Ken Harvey alternated watching the child the
remaining days of the week. After Harvey suffered a stroke in June, 2008, he and his
wife insisted they continue to watch M.S., but Sasha and her husband decided it should
only be one day/week. Kochheiser advised Harvey and Carol they should not be
watching any children at all because of their physical health. Kochheiser became aware
Harvey and Carol were watching M.S. by June, 2008, at the latest.
{¶7} On May 29, 2009, Sasha and Joseph Salsgiver both received calls from
Carol Harvey informing them something had happened to M.S. Joseph Salsgiver Richland County, Case No. 13CA105 4
arrived at the Harvey home first. He found M.S. crying uncontrollably. M.S. told her
father Harvey had touched her bottom with his bottom. A medical examination
confirmed sexual abuse.
{¶8} On June 22, 2009, M.S., a minor, through her mother and next friend,
Sasha Salsgiver, filed a complaint, naming Appellees as defendants. As against
Harvey, the complaint alleged he sexually abused M.S. on a number of occasions over
a seventeen month period of time. As against Kochheiser and Russell Harvey, the
complaint asserted they had special knowledge their father, Harvey, had sexually
abused other young female family members in the past, but negligently failed to warn or
report the abuse, thereby proximately causing injury to M.S. As against Pastor Thayer,
the complaint alleged the Pastor knew of Harvey's prior acts of sexual abuse, but
negligently failed to report and warn of the abuse. The claim against the Church was
predicated upon negligent supervision.
{¶9} Pastor Thayer and the Church filed a motion for summary judgment,
asserting summary judgment was appropriate as Pastor Thayer and the Church had no
actual or constructive knowledge of the alleged sexual abuse. The motion for summary
judgment was supported by the affidavit of Pastor Thayer. Therein, Pastor Thayer
averred, “at no time, did he ever engage in any conversations or counseling with co-
Defendant David Harvey relative to the allegations of sexual misconduct with [M.S.].”
The Pastor further stated neither he nor the Church “had any knowledge, either actual
or constructive, of any alleged sexual misconduct between Defendant David Harvey and
[M.S.].” Richland County, Case No. 13CA105 5
{¶10} M.S. filed a brief in opposition, which was supported by the affidavits of
Ken Harvey and Deandrea Whyel. In his affidavit, Ken Harvey, Harvey’s son and M.S.’s
step-grandfather, averred he knew “Pastor Thayer had counseled David Harvey about
his sexual perversions toward minors.” Ken Harvey further stated he knew “Pastor
Thayer had been counseling David Harvey about the incidents in the Complaint,
because David Harvey informed Carol Harvey {David’s wife} of this during Memorial
weekend of 2009, when I was present at their home.” In her affidavit, Deandrea Whyel,
who was present at Harvey’s competency hearing in the criminal action, averred her
“firm belief”, based upon a conversation between a former pastor of the Church and the
Salsgivers, “Thayer engaged in conversations and/or counseled David Harvey about the
issues contained in the Complaint”, and “Thayer had knowledge of the alleged sexual
conduct between David Harvey and [M.S.].”
{¶11} Pastor Thayer and the Church filed a motion to strike the affidavits of Ken
Harvey and Deandrea Whyel, arguing such were improper Civ. R. 56(E) evidence as
the affidavits contained only hearsay evidence and/or knowledge based upon hearsay.
The trial court granted the motion to strike.
{¶12} Via Judgment Entry filed March 1, 2011, the trial court granted summary
judgment in favor of Pastor Thayer and the Church. The trial court found neither Pastor
Thayer nor the Church had actual or constructive knowledge that the alleged abuse of
M.S. was occurring.
{¶13} The matter proceeded to jury trial against the remaining defendants. At
the conclusion of M.S.’s case-in-chief, the trial court granted directed verdict in favor of
Kochheiser and Russell Harvey. The trial court found, as a matter of law, Kochheiser Richland County, Case No. 13CA105 6
and Russell Harvey had no duty to warn M.S. or her parents of the potential risk of harm
as a special relationship did not exist. Thereafter, the trial court instructed the jury as to
the claims against Harvey. Harvey was not present and was not represented by
counsel. The jury returned a verdict against Harvey, and awarded M.S. $175,000 in
compensatory damages on count one, and $175,000 in compensatory damages on
count two, plus court costs and attorney fees.
{¶14} On October 31, 2013, the trial court issued a judgment entry which
awarded attorney fees of thirty percent of any and all amounts recovered by M.S. Via
Judgment Entry filed November 8, 2013, the trial court memorialized its ruling granting
directed verdict in favor of Kochheiser and Russell Harvey, and granted judgment in
favor of M.S. against Harvey in the amount of $175,000, plus costs. This appeal
ensued.
{¶15} M.S. raises the following assignments of error:
{¶16} "I. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT
AGAINST PLAINTIFF IN FAVOR OF DEFENDANTS DIANNA KOCHHEISER AND
RUSSELL HARVEY BECAUSE THE DEFENDANTS DID BREACH A DUTY TO WARN
PLAINTIFF'S PARENTS OF THE DEFENDANTS' SPECIALIZED KNOWLEDGE OF
THE FORESEEABLE RISK OF IMMINENT SEXUAL ABUSE TO A CHILD OF TENDER
YEARS.
{¶17} "II. THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR
DEFENDANTS RUSSELL HARVEY AND DIANNA KOCHHEISER BECAUSE THE
DEFENDANTS DID BREACH A DUTY TO WARN PLAINTIFF OF DEFENDANTS'
SPECIALIZED KNOWLEDGE OF THE FORESEEABLE RISK OF IMMINENT Richland County, Case No. 13CA105 7
PHYSICAL HARM TO M.S. BECAUSE OF THEIR SPECIAL RELATIONSHIP TO M.S.
AND DAVID HARVEY.
{¶18} "III. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT
FOR DEFENDANTS RUSSELL HARVEY AND DIANNA KOCHHEISER BECAUSE
THE ISSUE OF BREACH OF DUTY OF REASONABLE CARE WAS A JURY ISSUE.
{¶19} "IV. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT
DEFENDANTS HAD A DUTY TO REPORT A FELONY, WHICH THEY BREACHED,
AND PLAINTIFF WAS ENTITLED TO HAVE A JURY DECIDE THE ISSUES OF
BREACH OF DUTY, PROXIMATE CAUSE AND DAMAGES.
{¶20} "V. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR DEFENDANT J. HUDSON THAYER BECAUSE DEFENDANT THAYER HAD A
DUTY TO REPORT A FELONY, AND PLAINTIFF WAS ENTITLED TO HAVE A JURY
DECIDE THE ISSUES OF BREACH OF DUTY, PROXIMATE CAUSE AND DAMAGES.
{¶21} "VI. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR DEFENDANT J. HUDSON THAYER BECAUSE DEFENDANT THAYER WAS A
MANDATORY REPORTER UNDER R.C. §2151.421, AND HAD A DUTY TO REPORT
KNOWN OR SUSPECTED CHILD ABUSE TO THE APPROPRIATE AUTHORITIES,
WHICH HE FAILED TO DO, AND THE JURY WAS ENTITLED TO DECIDE
PROXIMATE CAUSE AND DAMAGES.
{¶22} "VII. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO DEFENDANT J. HUDSON THAYER BECAUSE DEFENDANT HAD A DUTY TO
REFRAIN FROM ADVISING THE CO-DEFENDANTS TO VIOLATE THE LAW. Richland County, Case No. 13CA105 8
{¶23} "VIII. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR DEFENDANT GRACE BRETHREN CHURCH.
{¶24} "IX. THE TRIAL COURT ERRED IN ENTERING JUDGMENT FOR
PLAINTIFF AT VARIANCE WITH THE JURY VERDICT."
I, II
{¶25} M.S.’s first and second assignments of error challenge the trial court’s
granting directed verdict in favor of Kochheiser and Russell Harvey upon finding they
did not have a duty to warn. M.S. asserts Kochheiser and Russell Harvey breached a
duty to warn because of their specialized knowledge of the foreseeable risk of imminent
abuse to a child of tender years, and because of their special relationships with M.S.
and Harvey, individually.
{¶26} The standard of review for the grant or denial of a motion for a directed
verdict is whether there is probative evidence which, if believed, would permit
reasonable minds to come to different conclusions as to the essential elements of the
case, construing the evidence most strongly in favor of the non-movant. Brown v.
Guarantee Title & Trust/Arta (Aug. 28, 1996), Fairfield App.No. 94-41, citing Sanek v.
Duracote Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114. A motion for a
directed verdict therefore presents a question of law, and an appellate court conducts a
de novo review of the lower court's judgment. Howell v. Dayton Power & Light Co.
(1995), 102 Ohio App.3d 6, 13, 656 N.E.2d 957, 961.
{¶27} In Ohio, a duty to warn or a duty to protect third parties does exist if a
special relationship has been established. In Estates of Morgan v. Fairfield Family
Counseling Ctr. (1997), 77 Ohio St.3d 284, 293, 673 N.E.2d 1311, 1319, the Ohio Richland County, Case No. 13CA105 9
Supreme Court specifically discussed special relationships and the duty to control, and
held:
Generally, a defendant has no duty to control the violent conduct of
a third person as to prevent that person from causing physical harm to
another unless a "special relation" exists between the defendant and the
third person or between the defendant and the other. In order for a special
relation to exist between the defendant and the third person, the
defendant must have the ability to control the third person's conduct. Id.,
at paragraph one of the syllabus.
{¶28} Kochheiser and Russell Harvey insist they had no legal obligation to report
Harvey’s past abuse to M.S. and her parents. We disagree. We find a special
relationship existed between Kochheiser and Russell Harvey, and their father, which
gave rise to such a duty. Kochheiser and Russell Harvey are Harvey’s adult children
and they acted as his power of attorney. They exercised some control over Harvey’s
affairs.
{¶29} We also find a special relationship existed between Kochheiser and
Russell Harvey, and M.S. Although not blood relatives, the parties were part of a family.
They were involved in each others’ lives, they celebrated holidays and special events
together, and provided assistance to one another in times of need. We do not find a
direct blood relationship to be the sole determinative factor in establishing a special
relationship.
{¶30} Furthermore, Kochheiser and Russell Harvey had specialized knowledge
of the potential risk of harm to M.S., a child of tender years, who whey knew was being Richland County, Case No. 13CA105 10
placed in Harvey’s care. Kochheiser and Russell Harvey were two of the few people
who knew of Harvey’s prior sexual abuse of minors. They were aware Harvey and his
wife were babysitting M.S. at least one year prior to M.S.’s disclosure of the abuse. In
fact, they urged Harvey not to babysit M.S. They were also aware the only other adult
present, their mother, Carol Harvey, was blind and was unable to protect M.S.
{¶31} Based upon the foregoing, we find the trial court erred in granting directed
verdicts in favor of Kochheiser and Russell Harvey on the claim of breach of duty to
warn based upon the unique combination of their special relationship and specialized
knowledge as presented by the facts of this case.
{¶32} Assignments of error one and two are sustained.
III
{¶33} In her third assignment of error, M.S. maintains the trial court erred in
granting directed verdict in favor of Koshheiser and Russell Harvey on the issue of
breach of duty of reasonable care.
{¶34} Given our disposition of M.S.’s first and second assignments of error, we
sustain this assignment of error. The issue of breach of duty will be left for the trier-of-
fact to determine.
IV
{¶35} In her fourth assignment of error, M.S. contends the trial court erred in
granting directed verdict in favor of Kochheiser and Russell Harvey on the issue of their
duty to report a felony.
{¶36} R.C. 2921.22(A) provides: “ (A)(1) Except as provided in division (A)(2) of
this section, no person, knowing that a felony has been or is being committed, shall Richland County, Case No. 13CA105 11
knowingly fail to report such information to law enforcement authorities.” However,
disclosure of information is not required when “[t]he information would tend to
incriminate a member of the actor's immediate family.” R.C. 2921.22(G)(2).
{¶37} Kochheiser and Russell Harvey were not required to disclose information
of the felony pursuant to R.C. 2921.22(G)(2); therefore, we find the trial court did not err
in granting directed verdict on this claim.
{¶38} Assignment of error four is overruled.
V, VI, VII, VIII
{¶39} In her fifth, sixth, seventh, and eighth assignments of error, M.S.
challenges the propriety of the trial court granting summary judgment in favor of Thayer
and the Church.
{¶40} The party seeking summary judgment on the ground that the nonmoving
party cannot prove its case bears the initial burden of informing the trial court of the
basis for the motion and of identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact on the essential elements of the nonmoving
party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-
274. The moving party must be able to point specifically to some evidence of the type
listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no
evidence to support the nonmoving party's claim. Id. at 293, 662 N.E.2d at 273-274.
{¶41} M.S. asserted a negligence claim against Thayer. The complaint reads:
{¶42} "37. Plaintiff incorporates by reference the allegations contained in the
preceding paragraphs as if fully rewritten herein. Richland County, Case No. 13CA105 12
{¶43} "38. Defendant, J. Hudson Thayer is a Pastor of the Grace Brethren
Church located at 531 Marion Avenue, Mansfield, Ohio, which Defendant, David
Harvey, the Plaintiff and the Plaintiff’s mother are and/or were active members.
{¶44} "39. Defendant Harvey was seeking counseling from Thayer for sexual
behavior with minor children.
{¶45} "40. Thayer has a duty to protect against a known or potential risk of harm
towards minor children.
{¶46} "41. Thayer deviated from this duty by not informing the Plaintiff’s mother
that her child is at risk of sexual harm.
{¶47} "42. That without any negligence on the part of the Plaintiff, but solely by
the negligence of Thayer he failed to act in due care.
{¶48} "43. As a direct and proximate result of Thayer’s negligence, Plaintiff has
been and continues to be damaged by Thayer’s actions in an amount to be determined
at trial."
{¶49} As against the Church, M.S. asserted a claim of negligent supervision.
The complaint reads:
{¶50} "44. Plaintiff incorporates by reference the allegations contained in the
preceding paragraphs as if fully rewritten herein.
{¶51} "45. Defendant, Grace Brethren Church is the employer of Thayer.
{¶52} "46. Within the scope of Thayer’s employment with the Church, Thayer is
to provide pastoral counseling.
{¶53} "47. Church failed its duty to exercise proper control over Thayer. Richland County, Case No. 13CA105 13
{¶54} "48. The Church knew or should have known from their past knowledge of
Thayer’s counseling services in this regard.
{¶55} "49. That the failure to exercise such control over Thayer posed an
unreasonable risk that other people will be injured."
{¶56} Pastor Thayer and the Church asserted they were entitled to summary
judgment as there was no question of fact regarding the alleged acts of negligence.
Specifically, Pastor Thayer and the Church maintain they had no actual or constructive
knowledge Harvey was sexually abusing M.S.; therefore, they cannot be liable on the
theory of negligence. In support of this position, Pastor Thayer and the Church
submitted Thayer’s own affidavit, in which the pastor avers:
{¶57} "1) Pastor Thayer never engaged in any conversations or counseling with
Defendant David Harvey relative to the allegations of sexual misconduct with [M.S.];
{¶58} "2) Pastor Thayer never had any knowledge, either actual or constructive,
of any alleged sexual misconduct between Defendant David Harvey and [M.S.] at any
relevant time noted in the [Complaint]; * * *
{¶59} "3) Pastor Thayer did not know of the allegations of sexual conduct with
[M.S.] until just a few weeks before the within lawsuits were filed when he was
approached by local law enforcement who was investigating the allegations; * * *
{¶60} "4) Grace Brethren Church did not have any knowledge, either actual or
constructive, of the alleged sexual misconduct with [M.S.] at any relevant time noted in
the [Complaint] until after the lawsuits were filed. * * *"
{¶61} We find Pastor Thayer's affidavit goes only to negate the issue of his duty
to report sexual misconduct committed by Harvey toward M.S. It does not address the Richland County, Case No. 13CA105 14
claim of his alleged duty to warn M.S.'s mother as contained in paragraph No. 41 of the
complaint. Therefore, we find it was inappropriate for the trial court to grant Pastor
Thayer and the Church summary judgment on Appellants' complaint based thereon.
{¶62} Nowhere in the complaint did M.S. specifically assert a claim Pastor
Thayer violated a duty to report under R.C. 2151.421. Nor did M.S. specifically assert a
claim Pastor Thayer violated a duty to refrain from advising co-defendants not to report
thereunder.
{¶63} However, the complaint did raise a claim of negligence against Pastor
Thayer based upon his failure to warn M.S.'s mother of the threat Harvey posed. As to
that claim, we find R.C. 2151.421 instructional. It requires certain persons to report
known or suspected abuse or a threat of abuse, and provides in pertinent part:
“(A)(1)(a) No person described in division (A)(1)(b) of this section
who is acting in an official or professional capacity and knows, or has
reasonable cause to suspect based on facts that would cause a
reasonable person in a similar position to suspect, that a child under
eighteen years of age or a mentally retarded, developmentally disabled, or
physically impaired child under twenty-one years of age has suffered or
faces a threat of suffering any physical or mental wound, injury, disability,
or condition of a nature that reasonably indicates abuse or neglect of the
child shall fail to immediately report that knowledge or reasonable cause
to suspect to the entity or persons specified in this division. * * *”
(Emphasis added). Richland County, Case No. 13CA105 15
{¶64} In his affidavit, Pastor Thayer states he had no knowledge of any alleged
sexual misconduct between Harvey and M.S. As such, he had no duty to M.S. to report
Harvey to the entity or persons specified in the statute. Furthermore, the record is
devoid of any evidence establishing Pastor Thayer knew Harvey was babysitting M.S.
In the absence of any such evidence, we find the pastor did not have a duty to warn
M.S.'s mother as he was unaware of a threat of abuse facing M.S.
{¶65} Having determined M.S.'s claims against Pastor Thayer were without
merit, any claims against the Church were, a fortiori, likewise without merit.
{¶66} The fifth, sixth, seventh, and eighth assignments of error are overruled.
IX
{¶67} In her final assignment of error, M.S. contends the trial court erred in
entering final judgment which was not in accordance with the jury verdict. We agree.
{¶68} Interrogatory Three instructed the jury to determine “the amounts of
damages, if any, to the plaintiff proximately caused by the sexual assault and battery
committed by” Harvey. The jury found total damages to M.S. in the amount of
$175,000, on count one. Likewise, in response to Interrogatory Four, which instructed
the jury to determine “the amounts of damages, if any, to the plaintiff proximately
caused by the intentional infliction of emotional distress by” Harvey, the jury found the
total damages to be $175,000, on count two. The jury completed two verdict forms
consistent with the interrogatory answers. However, in its November 8, 2015 Judgment
Entry on Jury Verdict, the trial court ordered: “Judgment is entered in favor of plaintiff
against defendant David Harvey in the amount of $175,000.” We find this to be an
error. Richland County, Case No. 13CA105 16
{¶69} Accordingly, assignment of error nine is sustained.
{¶70} The judgment of the Richland County Court of Common Pleas is affirmed
in part, and reversed in part and remanded for further proceedings in accordance with
this Opinion and the law.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur