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IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT IN AND FOR PALM BEACH
COUNTY, FLORIDA
CASE NO.: 50 2005 CA 012194 XXXX MB AA
RALPH C. SMITH, SR. and ADELE SMITH,
as Co-Personal Representatives of the Estate of
RALPH C. SMITH, JR., deceased, and
RALPH C. SMITH, SR. and ADELE SMITH,
individually, 7
Plaintiffs, G
vs.
OAKWOOD CENTER OF THE PALM
BEACHES, INC., a Florida corporation,
qant!
Defendant. oF
66:1 Wd gl disgo
PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION
FOR FINAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,
MOTION FOR PARTIAL SUMMARY JUDGMENT
COME NOW Plaintiffs, RALPH C. SMITH, SR.. and ADELE SMITH, as co-Personal
Representatives of the Estate of RALPH C. SMITH, JR., deceased, RALPH C. SMITH, SR. and
ADELE SMITH, individually, by and through their undersigned counsel, and pursuant to Rule 1.510
Florida Rules of Civil Procedure, and files this Response to Defendant, OAK WOOD CENTER OF THE
PALM BEACHES, INC.’s (hereinafter “OAK WOOD CENTER”) Motion for Final Summary Judgment
or Partial Summary Judgment and in support would state as follows:
I. FACTUAL BACKGROUND
1. The Defendant in this case is the OAK WOOD CENTER, a Baker Act facility, which
includes a secure wing (hereinafter the “West Unit”), which is located at 1041 45th Street, West Palm
Beach, FL 33407.2. On or about January 20, 2004, the decedent RALPH SMITH, JR., was taken by his
parents, RALPH C. SMITH, SR. and ADELE SMITH, to the Defendant’s premises. RALPH SMITH,
JR. was Baker Acted as an involuntary committed patient due to delusional thought processes, depression
and suicidal ideation.
3 On January 21, 2004, Linda Welkovich, M.D. conducted a psychiatric evaluation of
RALPH C. SMITH, JR., and assessed him as having a moderate risk of suicide due to his expressed
suicide ideation, severe depression, substance abuse and isolation. On January 23, 2004, Linda
Welkovich, M.D. conducted a follow-up psychiatric evaluation of RALPH C. SMITH, JR. and
determined that the need for commitment should be continued due to depression with death wishes,
suicidality and beliefs that he would die or be killed.
4. RALPH C. SMITH, JR. was placed on suicide precautions.
5. RALPH C. SMITH, JR. was placed in the secured West Unit which had no less than three
double locked doors for exit and entrance. His belt and shoelaces were taken away. He was notallowed
to have any sharp objects and needed to be observed by the staff every ten minutes. In the following days,
he needed to be observed every thirty minutes. On or about January 27,2004, RALPH C. SMITH, JR.
was escorted to lunch by tech, Peter Shakes. Mr. Shakes had anywhere from seven to eleven other
patients to escort with MR. SMITH. According to the deposition of social worker, Renee Paxton,
technicians served as security and at least two (2) guards should have been there to be with the large
number of in-patients going to lunch. Mr. Shakes told the police he was alone and couldn’t leave the other
in-patients to pursue the decedent. See Police Report attached as Exhibit“‘A”. After lunch, Mr. Shakes
escorted the same group of patients back to the West Unit.
2-6. RALPH C. SMITH, JR. escaped through unlocked, unguarded doors and ran approximately
one-quarter mile to the Channel 12 television antenna. _ His body was found shortly thereafter. All
police evidence clearly points that RALPH C. SMITH, JR. committed suicide by jumping off the antenna.
After the incident, no in-patient in the locked-down Unit was allowed to leave th Unit for lunch; rather, they
were served lunch on the Unit due to the lack of security.
Il. DISPUTED ISSUES AND FACTS
7. Defendant, in its Motion for Summary Judgment, states that the Plaintiffs “only theory of
causation in this case is that the decedent was allowed to go outside of the locked portion of the facility to
the cafeteria for lunch as a privilege for engaging in treatment and doing better. As such the decedent’s
elopement from the facility was due to the exercise of clinical/medical judgment. Plaintiffs’ legal theories
of premises liability and negligent security are not causally related to the decedent’s elopement from the
facility.”
8. This position taken by Defendant is erroneous. The Plaintiffs have numerous theories of
liability against the Defendant under its premises liability/negligent security Complaint. Nowhere in the
Plaintiff's Complaint are there any allegations of medical malpractice or any breach of standard of medical
care. See Plaintiffs’ Complaint attached as Exhibit “B”.
9. Through discovery depositions, records requests, interrogatories and expert discovery,
Plaintiffs have learned of the following acts and/or omissions committed by Defendant which supports its
theory of negligent security regardless of any clinical decisions made by the OAK WOOD CENTER
medical staff. They include:
(a) Prior to the date of this escape, there were dozens of escapes from the OAK WOOD
CENTER, including escapes very similar, if not identical to the escape of RALPH SMITH, JR. TheOAKWOOD CENTER failed to take remedial measures to prevent any future escapes. Furthermore,
these prior escapes put the OAK WOOD CENTER on notice that such an escape as that of RALPH C.
SMITH, JR. was reasonably foreseeable.
(b) The OAKWOOD CENTER failed to have a qualified and trained Chief of Security. By
its own policies and procedures the Chief of Security required training. Jon Vandenberg, who was head
of maintenance, wore the hat of Chief of Security by default. He had absolutely no training or experience
in the area of security.
(c) The Chief of Security, the above-referenced Jon Vandenberg, failed to review prior
incident reports and make recommendations on how to prevent future escapes.
(d) The OAK WOOD CENTER violated its own security policy and procedure protocol by
failing to hire a security consultant to examine the premises and make recommendations of how to improve
security.
(e) The OAK WOOD CENTER was negligent by failing to properly train its staff in the security
policies and procedures.
(f) The OAKWOOD CENTER was negligent by not having a sufficient staff to patient ratio
for escorting patients from the secured locked West Unit to the unsecured cafeteria. There is direct
testimony from former OAK WOOD CENTER employees, including former social worker, Renee Paxton,
who stated that two techs were required to escort the patients to the cafeteria. The tech, Mr. Shakes,
could not pursue or stop MR. SMITH from escaping as he had anywhere from seven to eleven other
patients.
-4-(g) The OAKWOOD CENTER was negligent by failing to implement a “red alert” once
RALPH C. SMITH, JR. escaped to bring additional personnel to the area of breach in security to respond.
(h) The OAK WOOD CENTER was negligent in its security by having unsecured doors
entering and exiting the facility in the cafeteria when in-patient individuals such as MR. SMITH were
present. There are numerous other instances of the OAK WOOD CENTER’ facility and structure lacking
proper security which would have prevented MR. SMITH’ s escape regardless of any medical decision
making.
(i) The OAK WOOD CENTER’s elopement policy and procedure requires the OAK WOOD
CENTER to immediately call 911 upon a patient, such as MR. SMITH, escaping. OAKWOOD
CENTER’s own defense expert, Richard Sem, testified that an appropriate amount of time would be one
minute or less. The evidence from eye-witnesses, employees and police CAD reports, show that a
minimum of fifteen minutes expired before the police were called. The call was placed by the OAK WOOD
CENTER as a non-emergency call.
(j) No search of the perimeter was conducted after MR. SMITH’s escape.
10. | TheOAK WOOD CENTER’s own employees and program manager, AL RICKETTS,
have testified that the OAK WOOD CENTER does have a duty to keep their patients safe and secure.
Itis a jury function to determine what precautions are reasonably required in exercise of a particular duty
orcare. See Maybell Holley. as Personal Representative of the Estate of Shirley Bryant, Deceased, v.
Mt. Zion Terrace Apartments. Inc., 382 So.2d 98 (Fla. 1st DCA 1980). In the Holley case, the Court
stated that the premises owner, in this case a landlord, may be held liable for failing to protect its tenant
from the result of reasonably foreseeable criminal conduct. The Court went on to rule that ina negligent
security case, evidence concerning the past record and therefore future foreseeability of violent crime on
-5-the premises, the prior practice of the landlord providing armed guards on the premises, the fact that part
of the tenant’s rent may have been expressly for security, and economic feasability and practicability of
providing effective security for each tenant in the complex, raised substantial fact issues precluding summary
judgment. See id.
11. A similar negligent security case in the First District Court of Appeal ruled that the question
of foreseeability in such a case is a question for the trier of fact. See Hardy v. Pier 99 Motor Inn, 664
So.2d 1095 (Fla. 1st DCA). In the instant case, Defendant, OAK WOOD CENTER, should have known
RALPH C. SMITH, JR.’s escape was reasonably foreseeable due to the plethora of previous escapes
including escapes almost identical to MR. SMITH’s. Their Chief of Security, Jon Vandenberg, was
unaware of these prior escapes and never implemented policies and procedures of reviewing prior escape
incidents and implementing remedial measures.
12. Clearly, from the above, there are disputed issues of fact on whether or not the
OAKWOOD CENTER provided sufficient security given all the facts and circumstances. Since there is
a factual issue, Summary Judgment must be denied both in whole and in part.
WHEREFORE, Plaintiffs, RALPH C. SMITH, SR.. and ADELE SMITH, as co-Personal
Representatives of the Estate of RALPH C. SMITH, JR., deceased, RALPH C. SMITH, SR. and
ADELE SMITH, individually, respectfully asks this Honorable Court to deny Defendant, OAK WOOD
CENTER OF THE PALM BEACHES, INC.’s, Motion for Final Summary Judgment in whole and in
part.
-6-CERTIFICATE OF SERVICE
I HEREBY CERTIFY a copy of the foregoing has been furnished the below listed counsel by
U.S. Mail and fax this 17th day of September, 2008.
List of Counsel
William W. Price, Esq.
William W. Price, P.A.
320 Fern St.
West Palm Beach, FL 33401
561-659-3212
561-659-0323 (fax)
Attorneys for Plaintiffs
Barbara W. Sonneborn, Esq.
Michael S. Smith, Esq.
Sonneborn, Rutter, Cooney &Klingensmith, P.A.
P.O. Box 024486
‘West Palm Beach, FL 33402-4486
561-684-2000
561-684-2312 (fax)
Attorneys for Defendant
-7-
WILLIAM W. PRICE, P.A.
Attorneys for Plaintiffs
320 Fern St.
West Palm Beach, FL 33401
(561) 659-3212
(561) 659%)323 (fax),
wy Bar NO73131305654 07/08/08 EMDI
PALM BEACH COUNTY SHERIFF'S OFFICE PAGE
OFFENSE REPORT CASE NO. 04026058
ADDITIONALLY, PER EMPLOYEE SHAKES PATIENT SMITH WAS A VERY QUIET PERSON AND
DIDN'T TALK A LOT. HE ADVISES THAT HE ESCORTED APPROXIMATELY 8 PATIENTS
AT 11:20 A.M. ON 01/27/04 TO THE CAFETERIA. THIS WAS IN FACT A PRIVILEGE.
THE GROUP RETURNED FROM THE CAFETERIA AT APPROXIMATELY 8:50 A.M. IT WAS
AT THIS TIME, WHILE THE GROUP BEING ESCORTED BACK TO THEIR ROOMS. AFTER
FINISHING LUNCH THAT THE PATIENT, MR. SMITH RAN AWAY FROM THE GROUP, WHILE
HE HELD THE DOOR AT THE END OF THE HALLWAY. PER MR. SHAKES, MR. SMITH
RAN IN AN EASTERLY DIRECTION IN THE COURTYARD AREA. HE COULD NOT CHASE
AFTER MR. SMITH, BECAUSE HE ALSO HAD 7 OTHER PATIENTS THAT HE WAS DEALING
WITH AT THE TIME. IT WAS GATHERED THAT MR, SMITH WAS ESCORTED IN A GROUP
APPROXIMATELY FOUR TIMES PRIOR TO THIS MOST RECENT INCIDENT. TO THE BEST
OF MR. SHAKES KNOWLEDGE THERE WERE NO DISPUTES OR PROVOCATION BETWEEN
MR. SMITH AND ANY OTHER PATIENT IN THE GROUP. MR. SHAKES ADVISED THAT
MR. SMITH WORE LONG SLEEVED SHIRT, POSSIBLY TAN. HE COULD NOT TELL WHETHER
OR NOT THE PATIENT WORE T-SHIRT UNDERNEATH. HE DID HAVE ON, HOWEVER, JEANS
AND BOAT SHOES. AGAIN, PER MR. SHAKES, THE PATIENT DID NOT SAY ANYTHING
TO HIM OR ANYONE IN THE GROUP BEFORE HE RAN AWAY. THE CONTACT WITH MR.
SHAKES BY THIS DETECTIVE, ALONG WITH DET. SLAUGHTER ENDED AT APPROXIMATELY
3:05 P.M.
AFTER WE LEFT THE OAKWOOD CENTER, DET. SLAUGHTER AND THIS DETECTIVE
RESPONDED TO THE IMMEDIATE AREA OF 1100 FAIRVIEW DRIVE AND CONDUCTED A
NEIGHBORHOOD FOLLOW-UP INVESTIGATION. DET. SLAUGHTER SPOKE TO SEVERAL
INDIVIDUALS IN THE AREA REFERENCE POSSIBLE INVESTIGATIVE LEADS. THIS
EFFORT, HOWEVER, WAS MET WITH NEGATIVE INVESTIGATIVE FINDINGS.
ADDITIONAL INVESTIGATION IS BEING CONDUCTED AS IT RELATES TO THIS
CASE. .
DET. DALTON REID ID #2040
DICTATED: 01/29/04
TRANSCRIBED: 01/29/04/DAW/#3495
XHIBIT
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tablesIN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
RALPH C. SMITH, SR. and ADELE SMITH, CASE NO.:
as Co-Personal Representatives of the Estate of
RALPH C. SMITH, JR., deceased, and eG MRSLA0 A 2194 Wey Be
RALPH C. SMITH, SR. and ADELE SMITH,
individually,
Plaintifis, as
vs.
OAKWOOD CENTER OF THE PALM
BEACHES, INC.., a Florida corporation,
COPY
Defendant. RECEIVED FOR FILING
; DEC 3 0 2005
SHARON R. BOCK
CLERK & COMPTROLLE!
COMPLAINT CIRCUIT CIVIL DIVISION
COME NOW the Plaintiffs, RALPH C. SMITH, SR. and ADELE SMITH, as Co-Personal
Representatives of the Estate of RALPHC. SMITH, JR., deceased, and RALPH C. SMITH, SR. and
ADELE SMITH, individually, (hereinafter collectively, “the Plaintiffs”), by and through their undersigned
counsel, and hereby sue the Defendant, OAK WOOD CENTER OF THE PALM BEACHES, INC.,a
Florida Corporation, and in support thereof, state the following:
GENERAL ALLEGATIONS
1. This is an action for damages in excess of Fifteen Thousand ($15,000.00) Dollars, exclusive
of fees, costs, and interest.
2. Plaintiffs RALPH C. SMITH, SR. and ADELE SMITH are the duly appointed Co-Personal
Representatives of the Estate of the Decedent, RALPH C. SMITH, JR. pursuant to Case No.: 502005
EXHIBIT
H “ B"CP 004904 XXXX MB, in the Circuit Court in and for Palm Beach County, Florida, Probate Division.
A copy of the Order Appointing Co- Personal Representatives is attached as Exhibit “A.”
3. Atall times material hereto, RALPH C. SMITH, JR. was aresident of Palm Beach County,
Florida.
4. Atall times material hereto, RALPH C. SMITH, SR. was a resident of Palm Beach County,
Florida.
5. Atall times material hereto, ADELE SMITH was aresident of Palm Beach County, Florida.
6. Atal] times material hereto, Defendant, OAK WOOD CENTER OF THE PALM BEACHES
INC., (hereinafter “OAK WOOD CENTER”) wasa licensed Florida Corporation, doing business in Palm
Beach County, Florida at its principal address of 1041 45" Street, West Palm Beach, Florida 33407.
7. RALPH C. SMITH, JR. was born November 7, 1963, and died January 27, 2004, at the
age of Forty. The Certificate of Death for RALPH C. SMITH, JR. is attached as Exhibit “B”.
8. RALPHC. SMITH, SR. is the surviving father of decedent RALPH C. SMITH, JR. pursuant
to Florida Statutes Section 768.21.
9. ADELE SMITHis the surviving mother of decedent RALPH C. SMITH, JR. pursuant to
Florida Statutes Section 768.21.
10. There are no other “survivors” of decedent RALPH C. SMITH, JR. pursuant to Florida
Statutes Sections 768.21 and 768.18.
11. Atall times material hereto, Defendant, OAK WOOD CENTER, was doing business in Palm
Beach County as a multi-service mental health facility serving the needs of the citizens of Palm Beach
County including serving as a involuntary commitment facility for individuals who are “Baker Acted”.
2.12. On or about January 20, 2004, decedent RALPH C. SMITH, JR. was taken to the
Defendant OAK WOOD CENTER’ s premises on 1041 45" Street, West Palm Beach, Florida 33407,
and was Baker Acted.
13. Decedent RALPH C. SMITH, JR. was Baker Acted due to delusional thought processes,
depression, and suicidal ideation.
14. OnJanuary 21,2004, Linda Welkovich M.D. conducted a psychiatric evaluation of RALPH
C. SMITH, JR. and prudently assessed RALPH C. SMITH, JR. as having a moderate risk of suicide due
to expressed suicide ideation, severe depression, substance abuse, and isolation.
15. On January 23,2004, Linda Welkovich M.D. conducted a follow-up psychiatric evaluation
of RALPH C. SMITH, JR. and determined that he continued the need for commitment due to depression
with death wishes, recent suicidality, and beliefs that he would die or be killed.
16. Atthis time, RALPH C. SMITH, JR. was placed on “suicide 2 precautions” and was to be
kept in a monitored and safe environment of the secured/locked West Unit on the premises owned and
operated by Defendant OAK WOOD CENTER.
17. Onor about January 27, 2004, RALPH C. SMITH, JR. was escorted to lunch, with other
committed individuals, at the cafeteria on the premises owned and operated by Defendant OAK WOOD
CENTER.
18. After lunch, RALPH C. SMITH, JR. was to be escorted from the cafeteria back to the
secure/locked West Unit. However, RALPH C. SMITH, JR .was allowed to travel back to the West Unit
in an unsecured/unlocked area.19. Onorabout January 27, 2004, while walking through the unsecured/unlocked lobby of the
OAKWOOD CENTER, RALPH C. SMITH, JR. ran through the Defendant’ s open door and escaped
from the Defendant’s premises.
20. Although RALPH C. SMITH, JR. still was assessed as being a danger to himself, the
Defendants’s security personnel on premises made no attempt to stop RALPH C. SMITH, JR.’s escape.
21. OnJanuary 27, 2004, shortly after escaping from Defendant OAK WOOD CENTER’s
premises, RALPH C. SMITH, JR. climbed a television station antenna and committed suicide in Mangonia
Park, Palm Beach County, Florida.
CAUSE OF ACTION AGAINST OAKWOOD CENTER OF THE PALM BEACHES, INC.
WRONGFUL DEATH OF RALPH C. SMITH JR.
(Negligent Security)
22. ThePlaintiffs re-adopt and incorporate the allegations in paragraphs 1 through 21 as though
fully set forth herein.
23. That on or about January 27, 2004, Defendant OAK WOOD CENTER owned and
operated a mental health facility located at 1041 45" Street, West Palm Beach, Florida 33407.
24. Atsuch time, Defendant OAK WOOD CENTER hada legal duty to protect, confine, secure
and or prevent the escape of involuntarily committed individuals who had been assessed as posing a threat
of harm to themselves or others like the decedent RALPH C. SMITH, JR.
25. Onor about January 27, 2004, Defendant OAK WOOD CENTER breached its legal duty
by creating or allowing to exist an unreasonably dangerous condition on its property and/or which
Defendant knew or should have known existed on its property; these negligent acts include, but are not
limited to the following:
4.a. Failing to provide a secure, locked area of ingress and egress for committed
individuals when being moved from the West Unit to other areas of the property.
b. Allowing committed individuals who have been assessed as posing a danger to
themselves to traverse unsecured, unlocked areas.
c, Failing to promulgate and or implement reasonable security policies and/or
procedures to prevent the escape of committed individuals who have been
assessed as posing a danger to themselves.
d. Failing to properly train and/or supervise its security personnel in the proper and/or
safe securing and escorting of committed individuals who have been assessed as
posing a danger to themselves.
e. Failing to provide sufficient security personnel while escorting multiple committed
individuals who have been assessed as posing a danger to themselves.
f. Failing to take reasonable action in preventing the escape of decedent RALPH C.
SMITH, JR. while having actual and/or constructive knowledge that he was at risk
of committing suicide.
g. Allowing RALPH C. SMITH, JR. to traverse the unsecured, unlocked lobby
without adequate security personnel to prevent his escape.
26. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, decedent RALPH C. SMITH, JR. escaped from the Defendant’s premises and
committed suicide.27. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, RALPH C. SMITH, SR. became a Survivor of RALPH C. SMITH, JR. as
defined by Florida Statute Section 768.21.
28. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, ADELE SMITH became a Survivor of RALPH C. SMITH, JR. as defined by
Florida Statute Section 768.21.
29. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, the estate of RALPH C. SMITH, JR. has suffered injury and is entitled to
recover prospective net accumulations which might have been expected but for the wrongful death of
RALPH C. SMITH, JR., reduced to present value.
30. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, RALPH C. SMITH, SR., pursuant to Florida Statute Section 768.21, has been
injured and is entitled to recover damages for mental pain and suffering from January 27, 2004, the date
of RALPH C. SMITH, JR.’s death.
31. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, ADELE SMITH, pursuant to Florida Statute Section 768.21, has been injured
and is entitled to recover damages for mental pain and suffering from January 27, 2004, the date opRALPH
C. SMITH, JR.’s death.
32. Asa direct and proximate result of the above negligent acts and/or omissions by Defendant
OAKWOOD CENTER, ADELE SMITH and RALPH C. SMITH, SR., pursuant to Florida Statute
Section 768.21, have been injured and are entitled to recover damages for medical and funeral expenses
arising out of the death of RALPH C. SMITH, JR.
6WHEREFORE, the Plaintiffs demand judgment against Defendant OAK WOOD CENTER OF
THE PALM BEACHES, INC., for compensatory damages, costs, post judgment interest, and all other
damages allowed by law and deemed appropriate by this honorable court. Furthermore, the Plaintiffs
demand trial by jury on all issues so triable.
Dated this 26 & day of December, 2005.
Respectfully submitted,
WILLIAM W. PRICE, P.A.
Attorneys for Plaintiffs
320 Fern St.
West Palm Beach, FL 33401
Phone: (561) 659-3212
Fax: (561) 659- >)
7
OI Y
Ge WILLIAM W. PRICE
Fla. Bar No.: 313130
-7-IN THE CIRCUIT COURT FOR
PALM BEACH COUNTY, FLORIDA
PROBATE DIVISION
File No.:
pivieiGD 200 5 CPOD 49 0 * XXX MB
ESTATE OF
RALPH C. SMITH, JR.,
Deceased
ORDER APPOINTING CO- PERSONAL REPRESENTATIVES
On the petition of Ralph C. Smith Sr. and Adele Smith for administration of the estate of Ralph
C. Smith, Jr., deceased, the court finding that the decedent died on January 27, 2004 and that Ralph C.
Smith Sr. and Adele Smith are entitled to appointment as co- personal representatives and are qualified
to be co- personal representatives, it is
# ADJUDGED that Ralph C. Smith Sr. and Adele Smith are appointed co-personal
representatives of the estate of the decedent, and that upon taking the prescribed oath, filing designation
of resident agent and acceptance, and entering into bond in the sum of $-0-, letters of administration shall
be issued Coal
ORDERED this day of 2005
Circuit Judge
Copies Furnished:
K Gdtiicw hi doth
WILLIAM W. PRICE, P.A. ct *%
320 Fern Street Card eake Asti bes Ape
West Palm Beach, Florida 33401 ;
Welhin 30 dap
EXHIBIT
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Caran Sa.
TWAS DECENT SveTNUS
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VERIFYING THE: PRESENCE OF 7
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Preview
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50 2005 CA 012194 XXXX MB AA RALPH C. SMITH, SR. and ADELE SMITH, as Co-Personal Representatives of the Estate of RALPH C. SMITH, JR., deceased, and RALPH C. SMITH, SR. and ADELE SMITH, individually, 7 Plaintiffs, G vs. OAKWOOD CENTER OF THE PALM BEACHES, INC., a Florida corporation, qant! Defendant. oF 66:1 Wd gl disgo PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT COME NOW Plaintiffs, RALPH C. SMITH, SR.. and ADELE SMITH, as co-Personal Representatives of the Estate of RALPH C. SMITH, JR., deceased, RALPH C. SMITH, SR. and ADELE SMITH, individually, by and through their undersigned counsel, and pursuant to Rule 1.510 Florida Rules of Civil Procedure, and files this Response to Defendant, OAK WOOD CENTER OF THE PALM BEACHES, INC.’s (hereinafter “OAK WOOD CENTER”) Motion for Final Summary Judgment or Partial Summary Judgment and in support would state as follows: I. FACTUAL BACKGROUND 1. The Defendant in this case is the OAK WOOD CENTER, a Baker Act facility, which includes a secure wing (hereinafter the “West Unit”), which is located at 1041 45th Street, West Palm Beach, FL 33407.2. On or about January 20, 2004, the decedent RALPH SMITH, JR., was taken by his parents, RALPH C. SMITH, SR. and ADELE SMITH, to the Defendant’s premises. RALPH SMITH, JR. was Baker Acted as an involuntary committed patient due to delusional thought processes, depression and suicidal ideation. 3 On January 21, 2004, Linda Welkovich, M.D. conducted a psychiatric evaluation of RALPH C. SMITH, JR., and assessed him as having a moderate risk of suicide due to his expressed suicide ideation, severe depression, substance abuse and isolation. On January 23, 2004, Linda Welkovich, M.D. conducted a follow-up psychiatric evaluation of RALPH C. SMITH, JR. and determined that the need for commitment should be continued due to depression with death wishes, suicidality and beliefs that he would die or be killed. 4. RALPH C. SMITH, JR. was placed on suicide precautions. 5. RALPH C. SMITH, JR. was placed in the secured West Unit which had no less than three double locked doors for exit and entrance. His belt and shoelaces were taken away. He was notallowed to have any sharp objects and needed to be observed by the staff every ten minutes. In the following days, he needed to be observed every thirty minutes. On or about January 27,2004, RALPH C. SMITH, JR. was escorted to lunch by tech, Peter Shakes. Mr. Shakes had anywhere from seven to eleven other patients to escort with MR. SMITH. According to the deposition of social worker, Renee Paxton, technicians served as security and at least two (2) guards should have been there to be with the large number of in-patients going to lunch. Mr. Shakes told the police he was alone and couldn’t leave the other in-patients to pursue the decedent. See Police Report attached as Exhibit“‘A”. After lunch, Mr. Shakes escorted the same group of patients back to the West Unit. 2-6. RALPH C. SMITH, JR. escaped through unlocked, unguarded doors and ran approximately one-quarter mile to the Channel 12 television antenna. _ His body was found shortly thereafter. All police evidence clearly points that RALPH C. SMITH, JR. committed suicide by jumping off the antenna. After the incident, no in-patient in the locked-down Unit was allowed to leave th Unit for lunch; rather, they were served lunch on the Unit due to the lack of security. Il. DISPUTED ISSUES AND FACTS 7. Defendant, in its Motion for Summary Judgment, states that the Plaintiffs “only theory of causation in this case is that the decedent was allowed to go outside of the locked portion of the facility to the cafeteria for lunch as a privilege for engaging in treatment and doing better. As such the decedent’s elopement from the facility was due to the exercise of clinical/medical judgment. Plaintiffs’ legal theories of premises liability and negligent security are not causally related to the decedent’s elopement from the facility.” 8. This position taken by Defendant is erroneous. The Plaintiffs have numerous theories of liability against the Defendant under its premises liability/negligent security Complaint. Nowhere in the Plaintiff's Complaint are there any allegations of medical malpractice or any breach of standard of medical care. See Plaintiffs’ Complaint attached as Exhibit “B”. 9. Through discovery depositions, records requests, interrogatories and expert discovery, Plaintiffs have learned of the following acts and/or omissions committed by Defendant which supports its theory of negligent security regardless of any clinical decisions made by the OAK WOOD CENTER medical staff. They include: (a) Prior to the date of this escape, there were dozens of escapes from the OAK WOOD CENTER, including escapes very similar, if not identical to the escape of RALPH SMITH, JR. TheOAKWOOD CENTER failed to take remedial measures to prevent any future escapes. Furthermore, these prior escapes put the OAK WOOD CENTER on notice that such an escape as that of RALPH C. SMITH, JR. was reasonably foreseeable. (b) The OAKWOOD CENTER failed to have a qualified and trained Chief of Security. By its own policies and procedures the Chief of Security required training. Jon Vandenberg, who was head of maintenance, wore the hat of Chief of Security by default. He had absolutely no training or experience in the area of security. (c) The Chief of Security, the above-referenced Jon Vandenberg, failed to review prior incident reports and make recommendations on how to prevent future escapes. (d) The OAK WOOD CENTER violated its own security policy and procedure protocol by failing to hire a security consultant to examine the premises and make recommendations of how to improve security. (e) The OAK WOOD CENTER was negligent by failing to properly train its staff in the security policies and procedures. (f) The OAKWOOD CENTER was negligent by not having a sufficient staff to patient ratio for escorting patients from the secured locked West Unit to the unsecured cafeteria. There is direct testimony from former OAK WOOD CENTER employees, including former social worker, Renee Paxton, who stated that two techs were required to escort the patients to the cafeteria. The tech, Mr. Shakes, could not pursue or stop MR. SMITH from escaping as he had anywhere from seven to eleven other patients. -4-(g) The OAKWOOD CENTER was negligent by failing to implement a “red alert” once RALPH C. SMITH, JR. escaped to bring additional personnel to the area of breach in security to respond. (h) The OAK WOOD CENTER was negligent in its security by having unsecured doors entering and exiting the facility in the cafeteria when in-patient individuals such as MR. SMITH were present. There are numerous other instances of the OAK WOOD CENTER’ facility and structure lacking proper security which would have prevented MR. SMITH’ s escape regardless of any medical decision making. (i) The OAK WOOD CENTER’s elopement policy and procedure requires the OAK WOOD CENTER to immediately call 911 upon a patient, such as MR. SMITH, escaping. OAKWOOD CENTER’s own defense expert, Richard Sem, testified that an appropriate amount of time would be one minute or less. The evidence from eye-witnesses, employees and police CAD reports, show that a minimum of fifteen minutes expired before the police were called. The call was placed by the OAK WOOD CENTER as a non-emergency call. (j) No search of the perimeter was conducted after MR. SMITH’s escape. 10. | TheOAK WOOD CENTER’s own employees and program manager, AL RICKETTS, have testified that the OAK WOOD CENTER does have a duty to keep their patients safe and secure. Itis a jury function to determine what precautions are reasonably required in exercise of a particular duty orcare. See Maybell Holley. as Personal Representative of the Estate of Shirley Bryant, Deceased, v. Mt. Zion Terrace Apartments. Inc., 382 So.2d 98 (Fla. 1st DCA 1980). In the Holley case, the Court stated that the premises owner, in this case a landlord, may be held liable for failing to protect its tenant from the result of reasonably foreseeable criminal conduct. The Court went on to rule that ina negligent security case, evidence concerning the past record and therefore future foreseeability of violent crime on -5-the premises, the prior practice of the landlord providing armed guards on the premises, the fact that part of the tenant’s rent may have been expressly for security, and economic feasability and practicability of providing effective security for each tenant in the complex, raised substantial fact issues precluding summary judgment. See id. 11. A similar negligent security case in the First District Court of Appeal ruled that the question of foreseeability in such a case is a question for the trier of fact. See Hardy v. Pier 99 Motor Inn, 664 So.2d 1095 (Fla. 1st DCA). In the instant case, Defendant, OAK WOOD CENTER, should have known RALPH C. SMITH, JR.’s escape was reasonably foreseeable due to the plethora of previous escapes including escapes almost identical to MR. SMITH’s. Their Chief of Security, Jon Vandenberg, was unaware of these prior escapes and never implemented policies and procedures of reviewing prior escape incidents and implementing remedial measures. 12. Clearly, from the above, there are disputed issues of fact on whether or not the OAKWOOD CENTER provided sufficient security given all the facts and circumstances. Since there is a factual issue, Summary Judgment must be denied both in whole and in part. WHEREFORE, Plaintiffs, RALPH C. SMITH, SR.. and ADELE SMITH, as co-Personal Representatives of the Estate of RALPH C. SMITH, JR., deceased, RALPH C. SMITH, SR. and ADELE SMITH, individually, respectfully asks this Honorable Court to deny Defendant, OAK WOOD CENTER OF THE PALM BEACHES, INC.’s, Motion for Final Summary Judgment in whole and in part. -6-CERTIFICATE OF SERVICE I HEREBY CERTIFY a copy of the foregoing has been furnished the below listed counsel by U.S. Mail and fax this 17th day of September, 2008. List of Counsel William W. Price, Esq. William W. Price, P.A. 320 Fern St. West Palm Beach, FL 33401 561-659-3212 561-659-0323 (fax) Attorneys for Plaintiffs Barbara W. Sonneborn, Esq. Michael S. Smith, Esq. Sonneborn, Rutter, Cooney &Klingensmith, P.A. P.O. Box 024486 ‘West Palm Beach, FL 33402-4486 561-684-2000 561-684-2312 (fax) Attorneys for Defendant -7- WILLIAM W. PRICE, P.A. Attorneys for Plaintiffs 320 Fern St. West Palm Beach, FL 33401 (561) 659-3212 (561) 659%)323 (fax), wy Bar NO73131305654 07/08/08 EMDI PALM BEACH COUNTY SHERIFF'S OFFICE PAGE OFFENSE REPORT CASE NO. 04026058 ADDITIONALLY, PER EMPLOYEE SHAKES PATIENT SMITH WAS A VERY QUIET PERSON AND DIDN'T TALK A LOT. HE ADVISES THAT HE ESCORTED APPROXIMATELY 8 PATIENTS AT 11:20 A.M. ON 01/27/04 TO THE CAFETERIA. THIS WAS IN FACT A PRIVILEGE. THE GROUP RETURNED FROM THE CAFETERIA AT APPROXIMATELY 8:50 A.M. IT WAS AT THIS TIME, WHILE THE GROUP BEING ESCORTED BACK TO THEIR ROOMS. AFTER FINISHING LUNCH THAT THE PATIENT, MR. SMITH RAN AWAY FROM THE GROUP, WHILE HE HELD THE DOOR AT THE END OF THE HALLWAY. PER MR. SHAKES, MR. SMITH RAN IN AN EASTERLY DIRECTION IN THE COURTYARD AREA. HE COULD NOT CHASE AFTER MR. SMITH, BECAUSE HE ALSO HAD 7 OTHER PATIENTS THAT HE WAS DEALING WITH AT THE TIME. IT WAS GATHERED THAT MR, SMITH WAS ESCORTED IN A GROUP APPROXIMATELY FOUR TIMES PRIOR TO THIS MOST RECENT INCIDENT. TO THE BEST OF MR. SHAKES KNOWLEDGE THERE WERE NO DISPUTES OR PROVOCATION BETWEEN MR. SMITH AND ANY OTHER PATIENT IN THE GROUP. MR. SHAKES ADVISED THAT MR. SMITH WORE LONG SLEEVED SHIRT, POSSIBLY TAN. HE COULD NOT TELL WHETHER OR NOT THE PATIENT WORE T-SHIRT UNDERNEATH. HE DID HAVE ON, HOWEVER, JEANS AND BOAT SHOES. AGAIN, PER MR. SHAKES, THE PATIENT DID NOT SAY ANYTHING TO HIM OR ANYONE IN THE GROUP BEFORE HE RAN AWAY. THE CONTACT WITH MR. SHAKES BY THIS DETECTIVE, ALONG WITH DET. SLAUGHTER ENDED AT APPROXIMATELY 3:05 P.M. AFTER WE LEFT THE OAKWOOD CENTER, DET. SLAUGHTER AND THIS DETECTIVE RESPONDED TO THE IMMEDIATE AREA OF 1100 FAIRVIEW DRIVE AND CONDUCTED A NEIGHBORHOOD FOLLOW-UP INVESTIGATION. DET. SLAUGHTER SPOKE TO SEVERAL INDIVIDUALS IN THE AREA REFERENCE POSSIBLE INVESTIGATIVE LEADS. THIS EFFORT, HOWEVER, WAS MET WITH NEGATIVE INVESTIGATIVE FINDINGS. ADDITIONAL INVESTIGATION IS BEING CONDUCTED AS IT RELATES TO THIS CASE. . DET. DALTON REID ID #2040 DICTATED: 01/29/04 TRANSCRIBED: 01/29/04/DAW/#3495 XHIBIT ty tablesIN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA RALPH C. SMITH, SR. and ADELE SMITH, CASE NO.: as Co-Personal Representatives of the Estate of RALPH C. SMITH, JR., deceased, and eG MRSLA0 A 2194 Wey Be RALPH C. SMITH, SR. and ADELE SMITH, individually, Plaintifis, as vs. OAKWOOD CENTER OF THE PALM BEACHES, INC.., a Florida corporation, COPY Defendant. RECEIVED FOR FILING ; DEC 3 0 2005 SHARON R. BOCK CLERK & COMPTROLLE! COMPLAINT CIRCUIT CIVIL DIVISION COME NOW the Plaintiffs, RALPH C. SMITH, SR. and ADELE SMITH, as Co-Personal Representatives of the Estate of RALPHC. SMITH, JR., deceased, and RALPH C. SMITH, SR. and ADELE SMITH, individually, (hereinafter collectively, “the Plaintiffs”), by and through their undersigned counsel, and hereby sue the Defendant, OAK WOOD CENTER OF THE PALM BEACHES, INC.,a Florida Corporation, and in support thereof, state the following: GENERAL ALLEGATIONS 1. This is an action for damages in excess of Fifteen Thousand ($15,000.00) Dollars, exclusive of fees, costs, and interest. 2. Plaintiffs RALPH C. SMITH, SR. and ADELE SMITH are the duly appointed Co-Personal Representatives of the Estate of the Decedent, RALPH C. SMITH, JR. pursuant to Case No.: 502005 EXHIBIT H “ B"CP 004904 XXXX MB, in the Circuit Court in and for Palm Beach County, Florida, Probate Division. A copy of the Order Appointing Co- Personal Representatives is attached as Exhibit “A.” 3. Atall times material hereto, RALPH C. SMITH, JR. was aresident of Palm Beach County, Florida. 4. Atall times material hereto, RALPH C. SMITH, SR. was a resident of Palm Beach County, Florida. 5. Atall times material hereto, ADELE SMITH was aresident of Palm Beach County, Florida. 6. Atal] times material hereto, Defendant, OAK WOOD CENTER OF THE PALM BEACHES INC., (hereinafter “OAK WOOD CENTER”) wasa licensed Florida Corporation, doing business in Palm Beach County, Florida at its principal address of 1041 45" Street, West Palm Beach, Florida 33407. 7. RALPH C. SMITH, JR. was born November 7, 1963, and died January 27, 2004, at the age of Forty. The Certificate of Death for RALPH C. SMITH, JR. is attached as Exhibit “B”. 8. RALPHC. SMITH, SR. is the surviving father of decedent RALPH C. SMITH, JR. pursuant to Florida Statutes Section 768.21. 9. ADELE SMITHis the surviving mother of decedent RALPH C. SMITH, JR. pursuant to Florida Statutes Section 768.21. 10. There are no other “survivors” of decedent RALPH C. SMITH, JR. pursuant to Florida Statutes Sections 768.21 and 768.18. 11. Atall times material hereto, Defendant, OAK WOOD CENTER, was doing business in Palm Beach County as a multi-service mental health facility serving the needs of the citizens of Palm Beach County including serving as a involuntary commitment facility for individuals who are “Baker Acted”. 2.12. On or about January 20, 2004, decedent RALPH C. SMITH, JR. was taken to the Defendant OAK WOOD CENTER’ s premises on 1041 45" Street, West Palm Beach, Florida 33407, and was Baker Acted. 13. Decedent RALPH C. SMITH, JR. was Baker Acted due to delusional thought processes, depression, and suicidal ideation. 14. OnJanuary 21,2004, Linda Welkovich M.D. conducted a psychiatric evaluation of RALPH C. SMITH, JR. and prudently assessed RALPH C. SMITH, JR. as having a moderate risk of suicide due to expressed suicide ideation, severe depression, substance abuse, and isolation. 15. On January 23,2004, Linda Welkovich M.D. conducted a follow-up psychiatric evaluation of RALPH C. SMITH, JR. and determined that he continued the need for commitment due to depression with death wishes, recent suicidality, and beliefs that he would die or be killed. 16. Atthis time, RALPH C. SMITH, JR. was placed on “suicide 2 precautions” and was to be kept in a monitored and safe environment of the secured/locked West Unit on the premises owned and operated by Defendant OAK WOOD CENTER. 17. Onor about January 27, 2004, RALPH C. SMITH, JR. was escorted to lunch, with other committed individuals, at the cafeteria on the premises owned and operated by Defendant OAK WOOD CENTER. 18. After lunch, RALPH C. SMITH, JR. was to be escorted from the cafeteria back to the secure/locked West Unit. However, RALPH C. SMITH, JR .was allowed to travel back to the West Unit in an unsecured/unlocked area.19. Onorabout January 27, 2004, while walking through the unsecured/unlocked lobby of the OAKWOOD CENTER, RALPH C. SMITH, JR. ran through the Defendant’ s open door and escaped from the Defendant’s premises. 20. Although RALPH C. SMITH, JR. still was assessed as being a danger to himself, the Defendants’s security personnel on premises made no attempt to stop RALPH C. SMITH, JR.’s escape. 21. OnJanuary 27, 2004, shortly after escaping from Defendant OAK WOOD CENTER’s premises, RALPH C. SMITH, JR. climbed a television station antenna and committed suicide in Mangonia Park, Palm Beach County, Florida. CAUSE OF ACTION AGAINST OAKWOOD CENTER OF THE PALM BEACHES, INC. WRONGFUL DEATH OF RALPH C. SMITH JR. (Negligent Security) 22. ThePlaintiffs re-adopt and incorporate the allegations in paragraphs 1 through 21 as though fully set forth herein. 23. That on or about January 27, 2004, Defendant OAK WOOD CENTER owned and operated a mental health facility located at 1041 45" Street, West Palm Beach, Florida 33407. 24. Atsuch time, Defendant OAK WOOD CENTER hada legal duty to protect, confine, secure and or prevent the escape of involuntarily committed individuals who had been assessed as posing a threat of harm to themselves or others like the decedent RALPH C. SMITH, JR. 25. Onor about January 27, 2004, Defendant OAK WOOD CENTER breached its legal duty by creating or allowing to exist an unreasonably dangerous condition on its property and/or which Defendant knew or should have known existed on its property; these negligent acts include, but are not limited to the following: 4.a. Failing to provide a secure, locked area of ingress and egress for committed individuals when being moved from the West Unit to other areas of the property. b. Allowing committed individuals who have been assessed as posing a danger to themselves to traverse unsecured, unlocked areas. c, Failing to promulgate and or implement reasonable security policies and/or procedures to prevent the escape of committed individuals who have been assessed as posing a danger to themselves. d. Failing to properly train and/or supervise its security personnel in the proper and/or safe securing and escorting of committed individuals who have been assessed as posing a danger to themselves. e. Failing to provide sufficient security personnel while escorting multiple committed individuals who have been assessed as posing a danger to themselves. f. Failing to take reasonable action in preventing the escape of decedent RALPH C. SMITH, JR. while having actual and/or constructive knowledge that he was at risk of committing suicide. g. Allowing RALPH C. SMITH, JR. to traverse the unsecured, unlocked lobby without adequate security personnel to prevent his escape. 26. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, decedent RALPH C. SMITH, JR. escaped from the Defendant’s premises and committed suicide.27. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, RALPH C. SMITH, SR. became a Survivor of RALPH C. SMITH, JR. as defined by Florida Statute Section 768.21. 28. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, ADELE SMITH became a Survivor of RALPH C. SMITH, JR. as defined by Florida Statute Section 768.21. 29. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, the estate of RALPH C. SMITH, JR. has suffered injury and is entitled to recover prospective net accumulations which might have been expected but for the wrongful death of RALPH C. SMITH, JR., reduced to present value. 30. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, RALPH C. SMITH, SR., pursuant to Florida Statute Section 768.21, has been injured and is entitled to recover damages for mental pain and suffering from January 27, 2004, the date of RALPH C. SMITH, JR.’s death. 31. Asadirect and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, ADELE SMITH, pursuant to Florida Statute Section 768.21, has been injured and is entitled to recover damages for mental pain and suffering from January 27, 2004, the date opRALPH C. SMITH, JR.’s death. 32. Asa direct and proximate result of the above negligent acts and/or omissions by Defendant OAKWOOD CENTER, ADELE SMITH and RALPH C. SMITH, SR., pursuant to Florida Statute Section 768.21, have been injured and are entitled to recover damages for medical and funeral expenses arising out of the death of RALPH C. SMITH, JR. 6WHEREFORE, the Plaintiffs demand judgment against Defendant OAK WOOD CENTER OF THE PALM BEACHES, INC., for compensatory damages, costs, post judgment interest, and all other damages allowed by law and deemed appropriate by this honorable court. Furthermore, the Plaintiffs demand trial by jury on all issues so triable. Dated this 26 & day of December, 2005. Respectfully submitted, WILLIAM W. PRICE, P.A. Attorneys for Plaintiffs 320 Fern St. West Palm Beach, FL 33401 Phone: (561) 659-3212 Fax: (561) 659- >) 7 OI Y Ge WILLIAM W. PRICE Fla. Bar No.: 313130 -7-IN THE CIRCUIT COURT FOR PALM BEACH COUNTY, FLORIDA PROBATE DIVISION File No.: pivieiGD 200 5 CPOD 49 0 * XXX MB ESTATE OF RALPH C. SMITH, JR., Deceased ORDER APPOINTING CO- PERSONAL REPRESENTATIVES On the petition of Ralph C. Smith Sr. and Adele Smith for administration of the estate of Ralph C. Smith, Jr., deceased, the court finding that the decedent died on January 27, 2004 and that Ralph C. Smith Sr. and Adele Smith are entitled to appointment as co- personal representatives and are qualified to be co- personal representatives, it is # ADJUDGED that Ralph C. Smith Sr. and Adele Smith are appointed co-personal representatives of the estate of the decedent, and that upon taking the prescribed oath, filing designation of resident agent and acceptance, and entering into bond in the sum of $-0-, letters of administration shall be issued Coal ORDERED this day of 2005 Circuit Judge Copies Furnished: K Gdtiicw hi doth WILLIAM W. PRICE, P.A. ct *% 320 Fern Street Card eake Asti bes Ape West Palm Beach, Florida 33401 ; Welhin 30 dap EXHIBIT 2CERTIFICATE OF DEATH FLORIDA a or Le "]t SOCAL SECURITY NOMBER 272-74-3049 Caran Sa. TWAS DECENT SveTNUS menses VERIFYING THE: PRESENCE OF 7 ROUND AND'GOLD EMBCSSED SEAL. 7 (OCHROMIC INK.