McDonald v. Toledo Mental Health Ctr.

KERNS, J. On April 18, 1986, Lillie Mae McDonald was murdered by her son Ronald McDonald while he was on a fourteen-day pass from the defendant, Toledo Mental Health Center, and on April 18, 1988, another son, Lawrence McDonald, commenced this wrongful death action in the Court of Claims alleging that the death of his mother was due to the negligence of the mental health facility. After hearing substantial evidence as to the conversations, happenings, and events which occurred prior to the murder, including testimony that Lillie McDonald lived in constant fear of her son Ronald who was a diagnosedparanoid-schizophrenic,the trial court found the decedent, Lillie McDonald, to be fifty-five percent negligent and the defendant, Toledo Mental health Center to be forty-five percent negligent. Accordingly Judgment was entered in favor of the defendant-appellee (R.C. 2315.19), and from the judgment so entered, the plaintiff-appellant has filed a timely notice of appeal to this court. The plaintiff has set forth three assignments of error, two of which are directed, in one way or another, to the weight and sufficiency of the evidence: "I. The Court of Claims erred in determining that plaintiff was guilty of negligence as a matter of law; plaintiff having done no act, nor having failed to act when she had a duty to act, eg. in failing to call TMHC when she had no duty in regard to this adult offspring. "II. The Court of Claims erred in determining that plaintiff was guilty of negligence under the facts since the only information decedent was charged with having come from TMHC through the police officer and it is not negligent for her not to call TMHC and inform them of the same information received from them and because she was entitled to assume that TMHC was not negligent." In this case, both contributory negligence and assumption of the risk were raised by the defendant in the pleadings, and the evidence submitted to the trial court refutes the subjective assumptions contained in the first and second assignments of error. In other words, the record discloses ample evidence to support the findings of negligence against both the mental health facility and the decedent, and under such circumstances, this court may not interfere. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279; 5 Ohio Jurisprudence 3d (1978) 191, appellate Review, Section 603. Among other things, the evidence, and the only reasonable inferences deducible therefrom, show that Lillie McDonald maintained a submissive and passive attitude for five days prior to her death, while possessed of knowledge that Ronald had threatened to kill her, with knowledge from experience that her son could become violent, and with a constant fear for her own safety. As shown by the testimony of the plaintiff, Lawrence McDonald, the decedent lived with a conscious regard for the inherent danger in which she placed herself, but she did not want her son Ronald to leave her home. Moreover, both the decedent and the plaintiff assured the police only a few days before the murder that Ronald was all right, thus *590 assuming further responsibility for the uncertainties that attended his previous history and his mental illness. In fact, the trial court was probably on track when it observed in its decision that the wrongful death in this case may have been traceable to a mother's love for her children, but in any event, the plaintiff's allegation that the defendant presented no credible evidence of negligence to support the judgment is without merit. Hence, the first and second assignments of error are overruled. The third assignment of error has been framed by the plaintiff as follows: "III. The Court of Claims erred in finding decedent Lillie McDonald more negligent than TMHC when TMHC had a duty toward its patient Ronald McDonald which she did not, when TMHC had more recent information concerning Ronald McDonald's mental illness, history, and delusions than she did and when TMHC had in fact determined that Ronald McDonald was a danger to the decedent and failed to act when she had not made such determination and could not assume that TMHC was acting improperly." In its decision, the trial court expressly found that the negligence of both parties directly and proximately contributed to the wrongful death of Lillie McDonald, and as heretofore indicated, the record discloses sufficient evidence to support the findings of the Court of Claims. But silently looming even greater in these proceedings than the negligence of either party was the inherent risk involved in the periodic release of a victim of mental illness. As noted by this court in Leverett v. State (1978), 61 Ohio App. 2d 35, "[b]oth private and public hospitals are faced with the extremely difficult task of balancing the interests of a patient who would benefit from permanent or periodic release, the interest of society in treating mental illness and returning the patient to a normal, productive life, and the interests of society in keeping a dangerous, mentally ill person off the streets.***" Under the circumstances of the present case, who is to say where and in what proportion fault lies? Noticeably, the trial court made a reasonable analysis of the evidence before determining that the failure of the decedent to act during the five-day period between the police visit to her home and the fatal occurrence was the proximate cause of her tragic death. It is fundamental, of course, that this court may not merely substitute its judgment for that of the trial court as to whose underlying negligence was greater, and accordingly, the third assignment of error is overruled. In its brief, the Toledo Mental Health Center has also set forth two cross-assignments of error, but the record fails to disclose that the defendant filed a notice of cross-appeal from the judgment of the Court of Claims. Under such circumstances, the assignments of error of the defendant may be considered only when necessary to prevent a reversal of the judgment under review, but not for the purpose of securing any affirmative relief. Parton v. Weilnau (1959), 169 Ohio St. 145; F. Enterprises v. Kentucky Fried Chicken Corp. (1976), 47 Ohio St. 2d 154; and Whitacre v. Bd. of Education (1974), 42 Ohio App. 2d 19. Hence, the defendant's assigned errors are overruled. For the foregoing reasons, plaintiff's assignments of error are overruled; defendant's cross-assignmentsof error are overruled, and the judgment of the Court of Claims is affirmed. Judgment affirmed. REILLY, J., concurs. BOWMAN, J., dissents. KERNS, J., retired of the Second Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.