FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2016-12-5090
M. LOWRY, Attorney at Law, for Appellant.
BELFANCE, Director of Law, and JOHN CHRISTOPHER REECE,
MICHAEL J. DEFIBAUGH, and BRIAN D. BREMER, Assistant
Directors of Law, for Appellees.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, JUDGE.
Dr. Dale Leonhardt appeals the judgment of the Summit County
Court of Common Pleas granting summary judgment in favor of
the City of Akron and Akron Police Department Officers Ryan
Smith, Jason Sams, Timothy Hunt, and Samnang Nan. We affirm
in part, and reverse and remand in part.
On December 5, 2015, Officer Ryan Smith and Officer Jason
Sams effected a traffic stop of Dr. Leonhardt after observing
him make a right turn through a red light without stopping
his vehicle. After the officers activated their police
cruiser's lights and siren, Dr. Leonhardt turned his
vehicle on to a side street and into a bank parking lot, with
Officer Smith following and parking the cruiser perpendicular
to Dr. Leonhardt's vehicle. Despite the police
cruiser's in-car video system ("IVS") being
activated, the camera was not turned toward Dr.
Leonhardt's vehicle, and consequently there is no video
of the officer's interactions with Dr. Leonhardt. There
is, however, an audio recording.
Although some of the facts of what occurred next are in
dispute, the events of the traffic stop generally unfolded as
follows. According to Officers Smith and Sams, after Dr.
Leonhardt parked his vehicle, he opened his door and exited
his vehicle. At that point, the officers drew and pointed
their firearms at Dr. Leonhardt and ordered him to return to
his vehicle. Dr. Leonhardt yelled out that he was hearing
impaired and that he thought they had told him to get out of
his car. After Dr. Leonhardt sat back down in the
driver's seat, Officer Sams approached the vehicle and
asked for Dr. Leonhardt's driver's license and
insurance information. Dr. Leonhardt provided his
driver's license but continued to search for his
insurance information. Dr. Leonhardt was upset that the
officers had drawn their weapons on him, and the exchange
between Dr. Leonhardt and the officers soon escalated into
name-calling, with Dr. Leonhardt became increasingly agitated
as the encounter went on. The officers told him to remain in
his vehicle and close his door while they returned to the
cruiser. Dr. Leonhardt told the officers he wanted his car
door to remain open.
At that point, the audio recording indicates that the
officers told Dr. Leonhardt to get out of the car and began
to forcibly remove him. In the process of removing Dr.
Leonhardt from his vehicle, all three fell to the ground,
with the officers attempting to restrain Dr. Leonhardt while
he was face-down on the pavement. Officer Sams testified that
with his left knee on the area of Dr. Leonhardt's
shoulder blade, he pinned his right arm to the ground.
Officer Smith delivered several knee strikes to Dr.
Leonhardt's body and applied pepper spray to Dr.
Leonhardt's face. Officer Sams stated that he was able to
place handcuffs around one of Dr. Leonhardt's wrists, and
that after Officers Hunt and Nan arrived on the scene, they
ran over to help complete the handcuffing and arrest. The
Akron Fire Department EMS arrived soon thereafter, and Dr.
Leonhardt was transported to a hospital for treatment.
Dr. Leonhardt was subsequently charged with assault,
obstructing official business, and resisting arrest. An
indictment was filed on December 22, 2015, and on February 5,
2016, the State of Ohio motioned the trial court to dismiss
the indictment without prejudice, with the trial court
dismissing the case on February 18, 2016.
In December 2016, Dr. Leonhardt filed a complaint against the
City of Akron and Officers Smith, Sams, Hunt and Nan, stating
claims for assault and battery, negligence, false arrest,
excessive force in violation of 42 U.S.C. 1983, malicious
prosecution, intentional infliction of emotional distress,
and respondeat superior. Dr. Leonhardt alleged injuries that
included a fractured elbow, a torn ligament, bruising and
abrasions, headaches, dizziness, anxiety, and nightmares.
Upon the defendants' motion, the trial court granted
summary judgment in favor of the defendants and dismissed Dr.
Leonhardt's complaint on April 27, 2018. Dr. Leonhardt
now appeals, raising twelve assignments of error, which have
been reordered for the purposes of our analysis.
OF ERROR TWO
TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT BY MEANS OF ITS APRIL 27, 2018, ORDER
THEREBY DISMISSING PLAINTIFF'S CLAIMS AGAINST ALL
DEFENDANTS WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED.
OF ERROR FOUR
TRIAL COURT ERRED DETERMINING THE INDIVIDUAL APPELLEES WERE
ENTITLED TO STATUTORY IMMUNITY UNDER R.C. 2744 ET SEQ.
In his second assignment of error, Dr. Leonhardt argues the
trial court erred in granting summary judgment in favor of
the defendants because genuine issues of material fact
existed. He contends that his testimony, coupled with the
audio and video, directly contradicts the officers'
version of the events surrounding the traffic stop and
arrest, thereby creating a factual dispute which would render
summary judgment inappropriate. In his fourth assignment of
error, Dr. Leonhardt argues the trial court erred in finding
the defendants were entitled to statutory immunity.
Appellate review of an award of summary judgment is de novo.
Grafton v. Ohio Edison Co., 77 Ohio St3d 102, 105
(1996). Summary judgment is appropriate under Civ.R. 56 when:
(1) no genuine issue as to any material fact remains to be
litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) viewing the evidence most strongly in
favor of the nonmoving party, reasonable minds can come to
but one conclusion and that conclusion is adverse to the
nonmoving party. Temple v. Wean United, Inc., 50
Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). A court must
view the facts in the light most favorable to the non-moving
party and must resolve any doubt in favor of the non-moving
party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
358-359 (1992). A trial court does not have the liberty to
choose among reasonable inferences in the context of summary
judgment, and all competing inferences and questions of
credibility must be resolved in the nonmoving party's
favor. Perez v. Scripps-Howard Broadcasting Co., 35
Ohio St.3d 215, 218 (1988).
The Supreme Court of Ohio has set forth the nature of this
[A] party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial
burden of informing the trial court of the basis for the
motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact
on the essential element(s) of the nonmoving party's
claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion that
the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point
to some evidence of the type listed in Civ.R. 56(C) which
affirmatively demonstrates that the nonmoving party has no
evidence to support the nonmoving party's claims. If the
moving party fails to satisfy its initial burden, the motion
for summary judgment must be denied. However, if the moving
party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set
forth specific facts showing that there is a genuine issue
for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
We note at the outset that Dr. Leonhardt's second
assignment of error, in isolation, does not specify which, if
any, of his claims are affected by the alleged factual
discrepancies, thus failing to alert this this Court as to
why or how a genuine issue of material fact remains to be
litigated as to any of his particular claims. Although we
overrule Dr. Leonhardt's second assignment of error based
upon these failings, the arguments pertaining to the alleged
factual discrepancies contained therein serve as the basis
for Dr. Leonhardt's subsequent assignments of error,
specifically his fourth assignment of error addressing the
issue of statutory immunity.
Dr. Leonhardt contends there are several factual
discrepancies that should have precluded the granting of
summary judgment. First he points to the video of the traffic
stop, and alleges that the video shows his driving to be
"totally responsible and devoid of anything unwarranted
or unusual." He goes on to state that "[t]he claims
of the [o]fficers regarding [his] driving are
Dr. Leonhardt next contends that Officer Smith's claim
that Dr. Leonhardt "forced his door open with such
magnitude that it forced him backwards and resulted in his
badge being thrown numerous feet across the parking lot"
was "merely a fabrication." Dr. Leonhardt points to
the fact that the 42-minute audio does not offer any
indication that any officer was hit with a car door. Rather,
the audio records one of the officers stating that the door
"almost hits him," in reference to the other
officer. Dr. Leonhardt further argues that the audio
indicates that that the officers forcibly began removing him
from his vehicle without giving him time to comply with their
order for him to get out of his car.
"It is established law that a 'police officer * * *
cannot be held personally liable for acts committed while
carrying out his or her official duties unless one of the
exceptions to immunity is established.'" Szefcyk
v. Kucirek, 9th Dist. Lorain No. 15CA010742,
2016-Ohio-171, ¶ 11, quoting Cook v.
Cincinnati, 103 Ohio App.3d 80, 90 (1st Dist.1995).
"An employee of a political subdivision is immune from
liability unless (1) the employee acted outside the scope of
his or her employment or official responsibilities, (2) the
employee acted with malicious purpose, in bad faith,
wantonly, or recklessly, or (3) the Revised Code expressly
imposes liability on the employee." Moss v. Lorain
Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395,
2009-Ohio-6931, ¶ 21 (9th Dist.). See also Bodager
v. Campbell, 4th Dist. Pike No. 12CA828, 2013-Ohio-4650,
¶ 30 (noting that immunity from state law claims is
distinct from the federal qualified immunity doctrine).
"'[R]eckless' conduct refers to an act done with
knowledge or reason to know of facts that would lead a
reasonable person to believe that the conduct creates an
unnecessary risk of physical harm and that this risk is
greater than that necessary to make the conduct
negligent." Elsass v. Crockett, 9th Dist.
Summit No. 22282, 2005-Ohio-2142, ¶ 21. "Wanton
misconduct" is defined as "[t]he failure to
exercise any care toward one to whom a duty of care is owed
when the failure occurs under circumstances for which the
probability of harm is great and when the probability of harm
is known to the tortfeasor." Shalkhauser v.
Medina, 148 Ohio App.3d 41, 48 (9th Dist.2002).
"Bad faith implies more than bad judgment or negligence;
instead, it 'imports a dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty
through some ulterior motive or ill will partaking of the
nature of fraud. It also embraces actual intent to mislead or
deceive another.'" State v. Dunn, 9th Dist.
Wayne No. 03CA0037, 2004-Ohio-2249, ¶ 63. While issues
regarding malice, bad faith, recklessness, and wanton conduct
are generally questions left to the jury to resolve, summary
judgment is appropriate when a plaintiff fails to present
sufficient facts to rebut the presumption of immunity.
Shadoan v. Summit Cty. Children Servs. Bd, 9th Dist.
Summit No. 21486, 2003-Ohio-5775, ¶ 14-15.
In granting summary judgment on Dr. Leonhardt's first
claim for assault and battery, and his second claim for
negligence, the trial court found that he had "not
demonstrated that Defendants' actions were objectively
unreasonable, or that they acted with malicious purpose, in
bad faith, or in a wanton or reckless manner" and
concluded that there were no genuine issues of material fact
remaining for trial.
The defendant officers do not dispute that force was used in
arresting Dr. Leonhardt. Their deposition testimony indicates
that force was used as a result of Dr. Leonhardt assaulting
Officer Sams by pushing his car door into the officer. We
conclude, however, that there are several unresolved issues
of fact regarding the officers' justification for use of
force, ultimately creating an issue of fact as to whether the
officers acted with malicious purpose, in bad faith,
wantonly, or recklessly.
The testimony of Officers Sams and Smith offers one version
of the events surrounding the traffic stop of Dr. Leonhardt.
After initially drawing their weapons and ordering Dr.
Leonhardt to sit back down in his car, Officer Sams
approached the vehicle and asked for Dr. Leonhardt's
driver's license and insurance information. The officers
indicated that during their encounter with Dr. Leonhardt, his
movements were rapid and erratic, and that he was irate.
According to their testimony, when the officers ordered Dr.
Leonhardt to close his car door so that they could return to
their cruiser, he not only requested that the door remain
open, but pushed the door into Officer Sams. Officer
Sams' Use of Force report states: "The door hit me
hard enough to rip off my badge that was on my uniform under
my coat and send it flying through the parking lot."
Officer Sams testified that it was at that point that they
decided to arrest Dr. ...