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Peterson v. Martyn

Court of Appeals of Ohio, Tenth District

July 24, 2018

Robert J. Peterson et al., Plaintiffs-Appellants
Randy Martyn, Defendant-Appellee National Security Associates, Inc. et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 10CV-12611)

         On brief:

          J.C. Ratliff, Jeff Ratliff, and Rocky Ratliff, for appellants.

          Isaac 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.


          Jeff Ratliff.

          Michael R. Szolosi, Jr.

          Brian M. Zets.


          BROWN, P.J.

         {¶ 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 the building.

         {¶ 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 course.

         {¶ 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 be detonated.

         {¶ 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 57.)

         {¶ 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. at 29-30.)

         {¶ 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 ...

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