Robert J. Peterson et al., Plaintiffs-Appellants
Randy Martyn, Defendant-Appellee National Security Associates, Inc. et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas (C.P.C. No.
Ratliff, Jeff Ratliff, and Rocky Ratliff, for appellants.
Wiles Burkholder & Teetor, LLC, Brian M. Zets, and Dale
D. Cook, for defendants-appellees Gahanna Police Department
and Sergeant James Graham.
Michael R. Szolosi, Jr., LLC, and Michael R. Szolosi, Jr.,
for Randy Martyn.
Michael R. Szolosi, Jr.
1} Plaintiffs-appellants, Robert J. Peterson
("Peterson"), and his wife Heidi Peterson, appeal
from a judgment of the Franklin County Court of Common Pleas,
granting the motions for summary judgment of
defendants-appellees, the Gahanna Police Department
("GPD"), Sergeant James Graham, and Randy Martyn.
For the following reasons, we reverse.
2} On August 26, 2010, appellants filed a complaint
against National Security Associates, Inc., Martyn, GPD,
Graham, and the city of Columbus. The complaint asserted
claims of negligence, recklessness, negligent training,
negligent supervision, negligent hiring, respondeat superior,
and loss of consortium. Appellants later dismissed National
Security Associates, Inc. and the city of Columbus from the
action. The events giving rise to the complaint occurred on
August 26, 2008, when Peterson was injured during an
explosive breaching training at the Columbus bomb range.
3} At the time of his injury, Peterson was an Ohio
State Highway Patrol ("OSHP") state trooper, and a
member of OSHP's special response team. OSHP's
special response team trained in explosive breaching, which
involves detonating an explosive device on the door or window
of a building to breach the structure so officers can enter
4} In 2008, OSHP asked Martyn if he would teach a
week-long explosive breaching seminar to members of
OSHP's special response team. Martyn was a certified
master breacher for the United States Army and had
"taught explosive breaching to over 1, 000 military and
law enforcement personnel." (Martyn Depo. at 12.) In his
civilian capacity, Martyn worked as an officer for GPD.
5} Martyn agreed to teach the course, and OSHP
agreed to pay Martyn $500 per student for the following OSHP
members to attend the course: Sergeant Mike Kemmer, Trooper
Eli Rivera, Trooper Robert Peterson, Trooper Seth Douthitt,
Trooper Erik Lofland, and Trooper Rick Tocash. Although
Peterson was already certified in advanced explosive
breaching, some of the other OSHP members had not received
any formal training in explosive breaching before the 2008
6} Two members of GPD, Graham, and Detective John
Power, attended the course for free. Graham had never
detonated an explosive before the 2008 seminar, but had
attended a training where Martyn showed members of GPD's
SWAT team "some of the tactics and things that went
along with explosive breaching." (Graham Depo. at 10.)
7} The first day of the seminar, August 25, 2008,
consisted of eight hours of classroom instruction at
OSHP's academy. On the second day of the seminar, the
class went to the Columbus bomb range to practice
constructing and detonating explosives. The bomb range had a
pavilion area where students would construct the charges, and
a separate area with a structure where the explosives would
8} Peterson and Graham were both back in the
pavilion constructing charges during the first two
detonations of the August 26, 2008 training. Although Graham
stated that he "did not hear the sequence on the first
two shots," Peterson testified he heard the
"highway patrol procedure for the shot, the command to
detonate" utilized during the first two shots. (Graham
Depo. at 23; Peterson Depo. at 49.) OSHP's shot sequence
consists of "three fire in the hole announcements,"
followed by the commands "this is the commander, I have
control, stand by, stand by, go." (Peterson Depo. at
9} The third shot of the day was a 300 grain flex
linear charge. Martyn approved the construction of this
charge, and informed the class it was "a fragmentation
producing type charge" and "a dangerous shot."
(Martyn Depo. at 86; Douthitt Depo. at 70.) After
constructing the charge, a group consisting of Douthitt,
Lofland, Tocash, Power, Peterson, and Graham took the charge
up to a door on the breaching structure. Graham was chosen to
be the person who would detonate the charge, known as the
primary breacher. The primary breacher had the duty of
checking the open area to ensure it was clear before
detonating the charge. (See Kemmer Depo. at 71-72;
Martyn Depo. at 73; Peterson Depo. at 174; and Douthitt Depo.
10} After placing the charge, the group retreated
"behind the corner of the facade" of the breaching
structure. (Peterson Depo. at 74, 76.) Once behind the
facade, Peterson became concerned about the whereabouts of
those not in the group. Peterson stated that he touched
Graham, and said "hang on a second. Show me the
detonator, which is - - which is a two piece plunger-type
detonator." (Peterson Depo. at 80.) Graham showed him
"the two pieces. [Peterson] said, keep it like that.
I'm going to go out here and make sure everybody is
behind cover." (Peterson Depo. at 81.) Graham, however,
testified that Peterson never said anything to him after they
had retreated behind the facade.
11} Peterson walked out into the open area and
called out to let the others know "we're getting
ready to blow this." (Peterson Depo. at 81.) Peterson
stated that "Randy and Mike and Jim moved to cover. Ely
assured me he was behind cover." (Peterson Depo. at 81.)
As Peterson was walking back to the facade, he started
yelling out the fire in the hole announcements. Peterson
explained that it was common to yell the fire in the hole
commands out before reaching cover "[b]ecause you're
yelling it to the area" to alert others that an
explosion is about to occur and, thus, want to be "in a
position that" others "see [you] and hear
[you]." (Peterson Depo. at 191-92.) As Peterson
"started to say the third fire in the hole, the blast
[was] detonated." (Peterson Depo. at 82.)
12} Graham recalled the incident differently. Graham
testified that, after the group retreated behind the facade,
he looked out into the open area and made a 180 degree view,
panning from left to right, and saw "no one in the open
area." (Graham Depo. at 48.) Lofland did not
"believe" Graham looked out into the open area
before detonating the charge, as Lofland saw Graham crouched
"behind the wall kind of locked in on the
initiator." (Lofland Depo. at 37.)
13} Graham testified that he, not Peterson, yelled
out the fire in the hole commands, and that he initiated the
charge after yelling out the third fire in the hole command.
Graham explained GPD's shot sequence was simply
"fire in the ...