VALJATO v. TARTABINI (2021)

OPINION AND ORDER

This matter is before the court on defendants Joseph and Audriona Tartabini's motions to dismiss, filed February 16, 2021 and February 26, 2021 respectively. The motions have been fully briefed and are now ripe for decision. For the reasons set forth below, the court hereby grants defendant Audriona's motion to dismiss in whole, and grants defendant Joseph Tartabini's motion to dismiss in part.

I. Factual and Procedural Background

Drew Alan Szabo (hereinafter “decedent”) died as a result of a fentanyl overdose on August 6, 2019. Complaint at ¶2, 5. Plaintiff, Jennifer Valjato, was appointed the Administrator of decedent's estate by the Cuyahoga County Court of Common Pleas, Probate Division. Id. at ¶1. Decedent died at 6280 Greenwood Parkway #206, Sagamore Hills, Ohio (the “property”). Id. at ¶3. Plaintiff characterizes the property as a “flophouse,” at which drugs are often sold and consumed. Id. at ¶13. Defendant Audriona Tartabini (“Ms. Tartabini”) resided at the property and defendant Joseph Tartabini (“Mr. Tartabini”) owned the property. Id. at ¶4. Ms. Tartabini is Mr. Tartabini's daughter. Id.

Plaintiff alleges that on the morning of August 6, 2019, Ms. Tartabini provided decedent an illegal drug that contained fentanyl. Id. at ¶8. Decedent apparently was not aware that the drug was mixed with fentanyl. Id. Thereafter, at approximately 9:36 a.m., Ms. Tartabini became aware that decedent was struggling to breathe. Id. at ¶10. Ms. Tartabini then allegedly texted friends to discuss the situation, and ultimately called for an ambulance at 10:56 a.m. Id. By the time Ms. Tartabini contacted emergency services, decedent was beyond any possibility of being revived. Id. at ¶12. Ms. Tartabini allegedly had Narcan, a drug which might have revived decedent, at the property but failed to provide it to decedent. Id. at ¶11.

Plaintiff alleges that Ms. Tartabini had been distributing and consuming drugs from the property for at least one year prior to decedent's death. Id. at ¶8. Mr. Tartabini was allegedly informed on multiple occasions prior to the date of decedent's death that Ms. Tartabini was providing, selling and consuming drugs there. Id. at ¶13. Allegedly, the police informed Mr. Tartabini of Ms. Tartabini's activities. Id. at ¶15. Despite this knowledge, Mr. Tartabini took no action to stop Ms. Tartabini from conducting such activities there. Id. at ¶14.

Plaintiff filed a complaint for wrongful death on December 16, 2020 against Ms. Tartabini, Mr. Tartabini, John and/or Jane Doe(s), “[a]ny person who provided fentanyl to Audriona Maria Tartabini which was then delivered to Drew Alan Szabo,” and Doe Corporation and/or Partnership, “[a]ny Corporation or other Business Entity that [sic] whose employees and/or agents are responsible for delivering fentanyl to Audriona Maria Tartabini which was then delivered to Drew Alan Szabo.” Complaint at caption. While the incident occurred in Summit County, Ohio, plaintiff filed her complaint in this court because Mr. Tartabini is a Cuyahoga County resident. Id. at ¶6.

In her complaint, plaintiff alleges three causes of action. Count I asserts negligence against both Mr. and Ms. Tartabini. Complaint at 4. Count II asserts claims of qualified and absolute nuisance by both Mr. and Ms. Tartabini. Id. at 5. Count III asserts a claim for civil damages arising out of the criminal act of permitting drug abuse at his property pursuant to R.C.2307.60(A)(1) against Mr. Tartabini. Id. at 6.

Mr. Tartabini filed his motion to dismiss on February 16, 2021. Ms. Tartabini filed her motion to dismiss on February 26, 2021. In his motion, Mr. Tartabini moves the court to dismiss all claims against him. If some claims survive, Mr. Tartabini moves the court to dismiss plaintiff's prayers for relief of attorney's fees and punitive damages, and to change the venue of this action to Summit County. In her motion, Ms. Tartabini moves the court to dismiss all claims against her. If claims against her survive, Ms. Tartabini also moves the court to dismiss plaintiff's prayers for relief of attorney's fees and punitive damages.

II. Law and Analysis

A. Standard of Review – Civ.R. 12(B)(6) Motion to Dismiss

A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A complaint is subject to dismissal for failure to state a claim upon which relief can be granted when it appears beyond doubt that plaintiff can prove no set of facts in support of his or her claim that would entitle plaintiff to relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11. When considering a Civ.R. 12(B)(6) motion, the court must confine its factual review to the four corners of the complaint. Dabney v. Metro Appraisal Group, Inc., 8th Dist. Cuyahoga No. 106917, 2018-Ohio-4601, 2018 WL 6002921, ¶15. Furthermore, the court must construe all factual allegations of the complaint as true, and all reasonable inferences shall be drawn in favor of the nonmoving party. York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2.d 1063 (1991). A plaintiff, however, cannot survive a motion to dismiss through the mere incantation of an abstract legal standard. Parsons v. Greater Reg'l Transit Auth., 8th Dist. No. 93523, 2010-Ohio-266, 2010 WL 323420, ¶11. The grounds for a plaintiff's entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. Factual allegations must be enough to raise a right to relief above a speculative level. Id.

B. Venue

In pertinent part, Civ.R. 3(C)(1) provides that proper venue lines in “[t]he county in which the defendant resides.” In his motion to dismiss, Mr. Tartabini argues that venue is proper in Summit County, Ohio. Mr. Tartabini asserts that the activity that gave rise to the complaint occurred in Summit County. Further, Mr. Tartabini argues that the complaint alleges that the drug activity took place in “his home” in Sagamore Hills, which, according to Mr. Tartabini, implies that he actually resides in Summit County.

The court finds Mr. Tartabini's arguments unpersuasive. The complaint clearly alleges that Mr. Tartabini resides in Broadview Heights, which is located in Cuyahoga County. Furthermore, the complaint clearly alleges that Mr. Tartabini owns the home in which the activity at issue in this case took place. The court does not find those allegations to be contradictory, or that they assert that Mr. Tartabini actually resides in Summit County. Therefore, pursuant to Civ.R. 3(C)(1), venue is proper in this court, so long as Mr. Tartabini is a party to this action, because he resides in Cuyahoga County.

C. Count I: Negligence

In count I of her complaint, plaintiff alleges negligence against both Mr. and Ms. Tartabini. To prevail on a negligence claim, a plaintiff must show “the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.” Strother v. Hutchinson, 67 Ohio St.2d 282, 423 N.E.2d 467 (1981). Plaintiff alleges that decedent was a business invitee of Mr. and Ms. Tartabini when he entered the home owned by Mr. Tartabini to obtain drugs from Ms. Tartabini. Ms. Tartabini, however, argues that decedent was her social guest, while Mr. Tartabini argues that decedent was a mere licensee. In Ohio, the legal status of a party, and thus the duty owed, is a question of law and not a question of fact. Alberty v. J.C. Partners Ltd., 2000 Ohio App. LEXIS 5710.

A business invitee is “one who enters another's land by invitation for a purpose that is beneficial to the owner.” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287 (1996). A licensee is a “person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation.” Alberty at 8, quoting Provencher v. Ohio Dept. of Transp., 49 Ohio St.3d 265, 266, 551 N.E.2d 1257 (1990). A gratuitous licensee is any licensee other than a business visitor, and includes three types of persons. Scheibel v. Lipton, 156 Ohio St. 308, 311, 102 N.E.2d 453 (1951). The first type is a licensee whose presence on the land is solely for the licensee's own purposes, in which the possessor has no business or social interest, and to whom the privilege of entering is extended as a mere favor by express consent or by general or local custom. Id. at 312, 102 N.E.2d 453. The second type are members of the possessor's household, except boarders or paying guests and servants. Id. The third type are “[s]ocial guests, who, in a sense, are persons temporarily adopted into the possessor's family.” Id.

In her complaint, the allegations of which this court must construe at this point in the proceedings as true, plaintiff alleges that decedent entered property owned by Mr. Tartabini and occupied by Ms. Tartabini to obtain an illegal drug from Ms. Tartabini. Although illegal, Ms. Tartabini's act of distributing a drug to decedent would confer a benefit on Ms. Tartabini – that is, she would be paid. Furthermore, the complaint alleges that Mr. Tartabini negligently sanctioned Ms. Tartabini's actions and that she was acting as his agent or apparent agent. Thus, the benefit of dealing drugs conferred on his agent, or apparent agent, would likewise benefit Mr. Tartabini. Therefore, the court finds that decedent held the status of a business invitee when he entered the property to obtain the drug from Ms. Tartabini, an alleged drug dealer and agent of Mr. Tartabini.

An owner or occupier of land owes a duty to warn its invitees of latent or hidden dangers. Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 80, 2003-Ohio-2573, 788 N.E.2d 1088. This duty to warn only extends to latent dangers. Id. There is no duty to warn of open and obvious dangers because the nature of the hazard itself serves as a warning. Id.

First, Ms. Tartabini argues that she is immune from liability irrespective of any potential duty owed to decedent pursuant to R.C. 2305.23, which provides that:

[n]o person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

Plaintiff alleges that Ms. Tartabini became aware that decedent was struggling to breathe at approximately 9:36 a.m. on August 6, 2019. Ms. Tartabini allegedly then texted friends to discuss the situation, but did not call an ambulance until 10:56 a.m. At this point, decedent was allegedly beyond any possibility of being revived. Furthermore, Ms. Tartabini did not provide decedent with Narcan, which she allegedly had at her residence, and which may have reversed the effects of decedent's fentanyl overdose. Under these factual allegations, which suggest that Ms. Tartabini was not immediately and helpfully responsive to her customer's medical crisis, the court finds that Ms. Tartabini's actions do not constitute the administration of emergency care or treatment, thereby precluding her from the protection of immunity afforded under R.C. 2305.23.

Second, both Ms. Tartabini and Mr. Tartabini argue that they did not owe decedent a duty to warn him of the open and obvious danger presented by the use of an illegal drug. Plaintiff argues that defendants had actual knowledge of the hazards of dispensing drugs, and that Ms. Tartabini failed to notify decedent that fentanyl was in the drug she provided to him. The court is not persuaded by plaintiff's arguments. In her complaint, plaintiff alleges that decedent voluntary entered the property owned by Mr. Tartabini to obtain and use an illegal drug provided to him by Ms. Tartabini. The inherent dangers of using an illegal drug itself served as a sufficient warning to decedent, irrespective of what other unknown drugs it may have been combined with. No one, given the tragic and widely-publicized death toll in Ohio and across the nation caused by the opioid epidemic, could be in any doubt of the great risks of consuming illegal drugs. Additionally, any reasonable adult has reason to suspect that an illegal drug, not regulated by the Food and Drug Administration, may potentially be mixed with other substances that may make that drug even more dangerous.

If plaintiff's allegations are true, it appears that Ms. Tartabini should be prosecuted criminally for conduct resulting in decedent's death; however, under Ohio law, the court cannot say that she is now civilly liable to plaintiff.

Therefore, the court finds that defendants did not have a duty to warn decedent of the open and obvious dangers of using an illegal drug, and hereby grants defendants’ motions to dismiss count I of plaintiff's complaint.

D. Count II: Qualified and Absolute Nuisance

In count II of her complaint, plaintiff alleges that Mr. and Ms. Tartabini's operation of a “flophouse” and drug distribution center constitute an absolute and qualified nuisance. Nuisance is the wrongful invasion of a legal right or interest. Taylor v. Cincinnati, 143 Ohio St. 426, 436, 55 N.E.2d 724 (1944). A nuisance can be either public or private. A public nuisance is “an unreasonable interference with a right common to the general public.” Hardin v. Naughton, 8th Dist. Cuyahoga No. 98645, 2013-Ohio-1549, 2013 WL 1696054 ¶18, quoting Brown v. Scioto Cty. Bd. Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist. 1993). A private nuisance is a “nontrespassory invasion of another's interest in the private use and enjoyment of land.” Id.

A public or private nuisance may be further classified as either an absolute or a qualified nuisance. Taylor at paragraphs 2 and 3 of the syllabus. An absolute nuisance is:

a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another; the doing of anything or the permitting of anything under one's control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights; the unlawfully doing of anything or the permitting of anything under one's control or direction to be done, which results in injury to another ․

Id. at paragraph 2 of the syllabus. Strict liability attaches to an absolute nuisance notwithstanding the absence of fault, because the wrongful act is so inherently dangerous that it cannot be conducted without damaging someone else's property rights, no matter the care utilized. Hardin at ¶19. A qualified nuisance concerns a lawful act done negligently or carelessly as to create a potential and unreasonable risk of harm that results in injury to another. Id. at ¶20.

Here, plaintiff fails to allege whether Mr. and Ms. Tartabini's actions constitute a private or public nuisance. Either way, her claims must fail. Plaintiff does not allege that she is seeking to enforce the private use and enjoyment of land to constitute a private nuisance in her complaint. Likewise, she does not allege any right common to the public that Mr. and Ms. Tartabini unreasonably interfered with, which is required by law in order to establish a public nuisance.

Instead, her allegations regard past drug activity engaged in by both the defendants and decedent. Neither decedent nor the general public enjoyed a legally protected interest to possess and consume illegal drugs at the property, which is required to establish an absolute, private or public nuisance. Also, the sale, possession and consumption of illegal drugs are not lawful acts that may be conducted in a negligent or careless manner to constitute a qualified, private or public nuisance. Furthermore, plaintiff does not assert that these activities are ongoing.

Therefore, the court finds that defendants’ actions did not constitute either an absolute or qualified, private or public nuisance, and hereby grants defendants’ motions to dismiss count II of plaintiff's complaint.

E. Count III: Permitting Drug Use

In count III of her complaint, plaintiff seeks damages from Mr. Tartabini pursuant to R.C. 2307.60. Ohio law allows an administrator or executor of an estate to maintain an action for damages notwithstanding the death of an injured person when “the death of [the] person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued ․” R.C. 2125.01. Ohio law also provides that “[a]nyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law ․” R.C. 2307(A)(1). A civil tort action may be brought for injury, death, or loss to person or property, including an action for wrongful death under R.C. 2125.01. R.C. 2307.60(B)(1)(a). However, recovery is barred on a claim for relief in a tort action to any person, or that person's legal representative, if the person engaged in conduct that, if prosecuted, would constitute a felony. R.C. 2307.60(B)(2)(b)

Plaintiff alleges that Mr. Tartabini, as the owner and/or lessee of the property, violated R.C. 2925.13(B) by negligently and/or knowingly permitting Ms. Tartabini to use the property for the commission of a felony drug offense. Plaintiff claims that Mr. Tartabini had actual knowledge of Ms. Tartabini's actions because he was informed on multiple occasions prior to the date of decedent's death that Ms. Tartabini was providing, selling and consuming drugs at the property. Despite this actual knowledge, plaintiff alleges that Mr. Tartabini negligently acquiesced and failed to take any action to stop Ms. Tartabini from conducting these activities.

Mr. Tartabini argues that plaintiff's claim is barred by R.C. 2307.60(B)(2)(b) because decedent's voluntary possession of illegal drugs constituted a crime that, if prosecuted, would constitute a felony. Plaintiff responds with several arguments against Mr. Tartabini's contention. First, plaintiff argues that decedent was never convicted or charged with any criminal offense. Second, plaintiff argues that decedent was not aware that the drugs he purchased from Ms. Tartabini contained fentanyl, and thus, he could not be prosecuted for possession of fentanyl or a fentanyl-related compound pursuant to R.C. 2925.11(C)(10)(a) and (b). Third, plaintiff argues that if decedent was charged with possession of fentanyl or a fentanyl compound, he could plea to a misdemeanor pursuant to R.C. 2925.11(F), because his possession was solely for personal use.

The court is unpersuaded by plaintiff's first and third arguments. R.C. 2307.60(B)(2)(b) bars recovery to any person, or that person's personal representative, if the person was engaged in conduct that, if prosecuted, would constitute a felony. The statute specifically does not require individuals to be either charged or convicted of a felony. Also, the statute does not carve out an exception for plea deals that may reduce a felony to a misdemeanor.

Plaintiff, perhaps strategically, or perhaps out of either ignorance or uncertainty, does not specify what drug decedent possessed and consumed that contained fentanyl and ultimately led to his death. R.C. 2925.11 penalizes the possession of numerous Schedule I and II controlled substances combined with a fentanyl-related compound as a minimum felony of the fifth degree, so long as the individual knowingly possessed the drug. Plaintiff concedes that decedent voluntarily entered the property and obtained the drug from Ms. Tartabini. Thus, he knowingly possessed such drug prior to consuming it. If such drug was a Schedule I or II controlled substance, plaintiff would be barred from recovering on her claim.

If the drug decedent obtained was not a Schedule I or II controlled substance, R.C. 2925.11(10)(b) penalizes possession of Schedule III, IV and V controlled substances that are not fentanyl-related compounds, but are combined with a fentanyl-related compound, as felonies of the fifth degree. This penalty attaches only if the offender “knows or has reason to know that the drug involved a fentanyl-related compound.” R.C. 2925.11(10)(b). If the offender does not know or have reason to know that the drug involved a fentanyl-related compound, the charge would be a misdemeanor of the first degree.

Again, decedent knowingly and voluntarily possessed and consumed an illegal drug he obtained from Ms. Tartabini. However, when accepting plaintiff's allegation that decedent did not know or have reason to know that the drug was combined with fentanyl, and when making the reasonable inference the fentanyl was combined with a Schedule III, IV or V controlled substance, the court does not find it appropriate to dismiss count III of plaintiff's complaint at this stage of the proceedings. If decedent had not died, and the drug he possessed and consumed was a Schedule III, IV or V controlled substance that unbeknownst to him was combined with fentanyl, he would have a valid cause of action under R.C. 2307.60. Thus, plaintiff, his legal representative, would now likewise have a valid cause of action. Through discovery, the facts may show that decedent was engaged in conduct that would bar recovery under R.C. 2307.60(B)(2)(b). If that proves to be the case, the court will consider an early motion for summary judgment from Mr. Tartabini.

Therefore, the court finds that count III of plaintiff's complaint is not barred by R.C. 2307.60(B)(2)(b) at this stage of the proceeding. Mr. Tartabini's motion to dismiss count III of plaintiff's complaint is hereby denied.

F. Attorney's Fees and Punitive Damages

In his motion to dismiss, Mr. Tartabini moves the court to dismiss plaintiff's prayers for recovery of attorney fees and punitive damages. He argues that Ohio law does not permit an award of attorney fees and punitive damages in wrongful death actions. Plaintiff argues that R.C. 2307.60 expressly permits awards of attorney fees and punitive damages. The court agrees with plaintiff. The plain language of R.C. 2307.60 provides that plaintiff may recover the cost of maintaining the action, attorney fees and punitive or exemplary damages.

Therefore, plaintiff's prayer for relief requesting attorney fees and punitive damages now withstands Mr. Tartabini's motion to dismiss.

III. Conclusion

For the foregoing reasons, after due consideration and for good cause shown, the court hereby grants Ms. Tartabini's motion to dismiss and hereby dismisses her from this action. The court hereby grants Mr. Tartabini's motion to dismiss counts I and II of plaintiff's complaint but denies his motion to dismiss count III, plaintiff's prayer for attorney fees and punitive damages, and to change venue.

WILLIAM F.B. VODREY, JUDGE: