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Leonhardt v. City of Akron

Court of Appeals of Ohio, Ninth District, Summit

December 18, 2019

DALE LEONHARDT Appellant
v.
THE CITY OF AKRON, et al. Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2016-12-5090

          DAVID M. LOWRY, Attorney at Law, for Appellant.

          EVE V. 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

          THOMAS A. TEODOSIO, JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         II.

         ASSIGNMENT OF ERROR TWO

         THE 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.

         ASSIGNMENT OF ERROR FOUR

         THE TRIAL COURT ERRED DETERMINING THE INDIVIDUAL APPELLEES WERE ENTITLED TO STATUTORY IMMUNITY UNDER R.C. 2744 ET SEQ.

         {¶8} 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.

         {¶9} 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).

         {¶10} The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm:

[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 nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

         {¶11} 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.

         {¶12} 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 unwarranted."

         {¶13} 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.

         {¶14} "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).

         {¶15} "'[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.

         {¶16} 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.

         {¶17} 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.

         {¶18} 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. ...


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