Brady v. Bucyrus Police Department
957 N.E.2d 339
Ohio Ct. App.2011Background
- Randall Randall, deceased, died of an apparent suicide after an OVI stop in Oct 2005; Brady represents the estate.
- Wert arrested Randall; at the station, Randall allegedly asserted his life would be ruined but not that he would harm himself.
- Brady arrived at the station; she recalls being told Randall would hire an attorney and challenge the OVI.
- Brady’s 2006 complaint named the city, police department, and three fictitious employees; service on fictitious parties was by certified mail, not personal service, and no 'name unknown' phrase in the summons.
- Brady dismissed in 2008 and refiled in 2009 with identical claims; amended in 2010 to substitute Wert and Teets for fictitious parties; service again lacked 'name unknown' and personal service.
- The trial court granted summary judgment in Sept 2010; the court on appeal upheld on immunity and joinder/personal-service grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper joinder of Wert and Teets before limitations | Brady argues timely joining via Civ.R. 15(D). | Wert/Teets were never properly joined within the limitations period. | Wert and Teets not properly joined; summary judgment affirmed on joinder grounds. |
| Whether city immunity under RC 2744 applies | Brady contends city acted negligently/wanton without immunity. | City entitled to immunity as a political subdivision performing governmental functions. | City immunity applies; none of RC 2744.02(B) exceptions applicable. |
| Adequacy of Civ.R. 15(D) requirements for fictitious parties | Brady complied with Civ.R. 15(D) by designating fictitious parties and serving them. | Brady failed to satisfy Civ.R. 15(D)’s five requirements (name unknown, description, averment, 'name unknown' in summons, personal service). | Brady failed to satisfy Civ.R. 15(D); amended complaint cannot relate back. |
| Relation back under Civ.R. 15(C) when 15(D) not satisfied | Relation back should permit substitution of Wert/Teets. | Relation back cannot apply without proper 15(D) service. | Relation back unavailable; timely service not achieved. |
Key Cases Cited
- Harris v. Sutton, 183 Ohio App.3d 616 (2009-Ohio-4033) (treats department as not a separate suable entity)
- Burgess v. Doe, 116 Ohio App.3d 61 (1996-Ohio-) (police departments not real parties in interest)
- Erwin v. Bryan, 125 Ohio St.3d 519 (2010-Ohio-2202) (Civ.R. 15(D) requirements; discovery of names)
- LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324 (2008-Ohio-3921) (relation back; Civ.R. 15(C) interplay with 15(D))
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (2007-Ohio-3762) (notice defects do not excuse lack of jurisdiction)
- Maryhew v. Yova, 11 Ohio St.3d 154 (1984) (civil rules require proper service irrespective of actual knowledge)
- Baker v. Meijer Stores Ltd., 2009-Ohio-4681 (12th Dist. 2009) (treatment of unknown defendant names and statutes of limitation)