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Hamilton County morgue found negligent after worker has sex with corpses

ANNIE YAMSON
Special to the Legal News

Published: September 12, 2014

A panel of judges in the 6th U.S. Circuit Court of Appeals ruled recently that the U.S. District Court for the Southern District of Ohio at Cincinnati properly denied state statutory immunity to Hamilton County and its employees in a case involving abuse of corpses at the Hamilton County morgue.

The higher court also ruled that the district court properly granted summary judgment to the county defendants on constitutional claims.

The case began when the family members of murdered young women discovered that the bodies of their loved ones had been sexually abused while at the Hamilton County morgue.

The families of Karen Range, Charlene Appling and Angel Hicks sued Hamilton County, morgue supervisor Bernard Kersker and Hamilton County Coroner Dr. Frank Cleveland, alleging they knew Kenneth Douglas, a former morgue attendant, sexually abused an untold number of bodies while he was drunk and high while on duty.

Douglas was convicted of gross abuse of a corpse after it was established that, in 1982, he abused the body of Range, leading to a false rape conviction for the man who was convicted of her murder.

In 1991, he sexually abused the bodies of Appling and Hicks.

Douglas’ actions, however, were not discovered until 2007, after advances in forensic science allowed testing that matched his DNA to semen found in the bodies.

Case summary states that Douglas was regularly alone in the morgue. He admitted to having sex with many bodies of young women and that he was regularly under the influence of alcohol, marijuana and cocaine while at work.

When the case went to trial, an expert for the plaintiffs described Douglas as an “opportunistic necrophile” whose substance abuse was a “major contributing factor to his sexual abuse of corpses.”

While employed at the morgue, Douglas was directly supervised by Kersker, who was in turn supervised by Carol Maratea who answered to Cleveland.

Much of the plaintiff’s case against Hamilton County hinged on what Kersker and Cleveland knew of the abuse.

“There is evidence on the record suggesting that Kersker knew or should have known about Douglas’ alcohol use and perhaps his drug use,” wrote Judge Jane Stranch for the court of appeals.

During trial, a coworker testified that they often smelled alcohol on Douglas during his shifts.

Douglas himself testified that, by 1992, his cocaine addiction was so serious that he could not perform his job duties because of heavy shaking.

Douglas’ former wife, Patricia Chavis, testified that she called Kersker on several occasions to complain that Douglas was drinking at work.

“The record also suggests that Kersker may have known that Douglas was having sex with live women at the morgue, something he apparently did with some frequency,” wrote Judge Stranch. “Kersker himself took messages from the women who constantly called the morgue for Douglas, and Douglas’ wife stated during one of her calls to Kersker that Douglas came home ‘smelling like sex.’”

Douglas told the court that Kersker knew of his numerous run-ins with the law, including domestic violence and DUI convictions.

Kersker was also informed of a suicide attempt by Douglas and his ensuing psychiatric hospital stay.

The appellate panel noted that, according to the trial testimony, the environment at the morgue was very “laid back” and other employees were also allegedly using drugs.

“While Kersker denied allowing such behavior, he did say in a deposition that one of the risks of morgue attendants drinking at work is that they might disrespect or harm the bodies,” wrote Judge Stranch, noting that, through all of this, Kersker kept Cleveland informed of what was happening.

Under Ohio tort law, the families of the victims brought claims alleging negligent and intentional infliction of emotional distress and negligent retention and supervision.

Hamilton County argued that it was entitled to immunity under R.C. 2744.03(A)(3), which grants a political subdivision immunity “if the action or failure to act by the employee involved that gave rise to the claim of liability was within the sound discretion of the employee with respect to policy-making, planning or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.”

The appellate panel ruled that the abuse could not qualify as a policy-making or planning decisions but instead, Hamilton County employees made factual, employee-specific decisions.

“Such facts include detailed decisions about what shift to assign Douglas, whether to administer drug tests to him ... whether to confront Douglas or change the level of supervision after his wife called to complain about alcohol and sex at the morgue ... and whether to look into Chavis’ allegations that some other employees were doing drugs,” wrote Judge Stranch.

Those specific decisions related to a single employee did not fall within the discretionary, policy-making acts specified under the statute, the court of appeals ruled.

Therefore, the district court properly denied immunity to Hamilton County.

It also held that Kersker denied a known risk and failed to mitigate the risk that Douglas posed at the morgue.

It upheld the district court’s ruling that Kersker and Cleveland were guilty of negligent retention and supervision.

The appellate panel went on to address the plaintiffs’ constitutional claims under Section 1983, where they alleged that Hamilton County had a policy of “deliberate ignorance to known risks of harm” and thus violated their substantive due process rights to family association and privacy.

The district court had granted summary judgment to the county defendants on those claims.

“Viewing the facts in a light most favorable to the plaintiffs, a jury could find much to condemn in the conduct of Kersker and Dr. Cleveland, perhaps even recklessness,” wrote Judge Stranch. “But a jury could not conclude that these defendants were aware of facts from which they could infer a substantial risk of the kind of serious harm that occurred here, that they did infer it, and that they acted with indifference toward the rights of the families involved.”

The court of appeals ruled that Kersker and Cleveland did not deliberately show indifference to the plaintiffs’ constitutional rights and affirmed the district court’s decision to grant them summary judgment on the Section 1983 claims.

On the basis of the state claims, the case was ultimately remanded to the district court for further proceedings and a cross-appeal from Hamilton County was dismissed.

Judges John Rogers and Bernice Donald joined Judge Stranch to form the majority.

The case is cited Laurie Range, et al. v. Kenneth Douglas, et al., Case Nos. 12-3857/4190/4192.

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