Nasrin Afjeh v. Village of Ottawa Hills, et al.
Court of Appeals No. L-14-1267
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
August 26, 2015
2015-Ohio-3483
YARBROUGH, P.J.
Trial Court No. CI0201205227
Joan C. Szuberla, Byron S. Choka, Sarah A. McHugh and Jerome Phillips, for appellee Sarah A. McHugh.
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I. Introduction
{¶ 1} This is an appeal from an order of the Lucas County Court of Common Pleas, granting appellee‘s, Sarah McHugh, motion for summary judgment on apрellant‘s, Nasrin Afjeh, action for assault, battery, and abuse of process. We affirm.
{¶ 2} Appellant is a resident of the village of Ottawa Hills. Appellee has been serving as village solicitor for Ottawa Hills since 2006. Appellant and the village of Ottawa Hills have had several disputes since 1998. The current dispute centers on appellant‘s property in Ottawa Hills. The property was first deemed to be a nuisance by Toledo Municipal Court on October 7, 2004. That decision was affirmed by this court. Village of Ottawa Hills v. Afjeh, 6th Dist. Lucas No. L-04-1297, 2006-Ohio-2618. Appellee, acting in her capacity as solicitor, filed two show cause motions in Toledo Municipal Court in 2010 and 2011 against appellant after appellant failed to make the required changes to her property. Appellant was given two contempt citations as a result of these proceedings. Both citations were later affirmed by this court. Village of Ottawa Hills v. Afjeh, 6th Dist. Lucas No. L-10-1353, 2012-Ohio-125; Village of Ottawa Hills v. Afjeh, 6th Dist. Lucas No. L-12-1093, 2013-Ohio-1474.
{¶ 3} On August 4, 2010, appellant and appellee were in attendance of a property maintenance meeting along with the other members of the Village Property and Maintenance Committee. The mayor, village manager, and appellant‘s husband were also present. The purpose of the meeting was so appellant could appeal the determination that her property was a nuisance. At the time of the meeting, appellant used a wheelchair as her right leg was in a cast.
{¶ 4} Following the meeting, appellant struck up a conversation with a neighbor, Richard Levi. Appellant told Levi appellee allegedly lied about a city employee‘s actions
{¶ 5} Because appellant was blocking the оnly entrance and exit from the meeting room, appellee asked appellant to move her wheelchair out of the way. When appellant refused, Ottawa Hills police officer Chris Sargent, and appellee, each grabbed an arm of her wheelchair and pushed the wheelchair out of the way of the other guests. Appellant then yelled for them to stop. In response to her shouting, appellant‘s husband then took control of her wheelchair and left the building. Appellee and appellant agree the entire incident was brief and took between 15 and 30 seconds.
{¶ 6} Appellant testified in her deposition she “wiggled” between appellee and Officer Sargent, while they pushed the wheelchair out of the way. Appellant‘s affidavit attached to her motion in opposition to the motion for summary judgment states appellee yanked and shook appellant‘s wheelchair. Appellаnt claims her wheelchair was violently shaken in this process and as a result she suffered further injury to her leg which was already in a cast.
{¶ 7} On September 10, 2012, appellant filed a complaint against the village of Ottawa Hills and appellee for abuse of process, assault, and battery. Following discovery, appellee filed a motion for summary judgment which was granted by the trial court on November 13, 2014. Thereafter, appellant filed this appeal with respect tо her
B. Assignment of Error
{¶ 8} Appellant raises one assignment of error:
The Trial Court erred in granting summary judgment as to Mrs. Afjeh‘s claims for assault and battery.
II. Analysis
{¶ 9} A motion fоr summary judgment is reviewed de novo by an appellate court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “‘When reviewing a trial court‘s ruling on summary judgment the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.‘” Gunsorek v. Pingue, 135 Ohio App.3d 695, 700, 735 N.E.2d 487 (10th Dist.1999), quoting Baker v. Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).
{¶ 10} In order to prevail on a motion for summary judgment, the moving party “must show that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing the evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party.” State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994), citing Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 65-66, 609 N.E.2d 144 (1993); see also
{¶ 11} When making a motion for summary judgment, a moving party “must specifically delineate the basis upon which summary judgment is sought * * *.” Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus. The moving party must also identify those parts of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Should this burden be met, the nonmoving party must respond with specific facts demonstrating that a genuine issue of material fact exists. Id. A “material fact” is one which would affect the outcome of the suit. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999), citing Needham v. Provident Bank, 110 Ohio App.3d 817, 827, 675 N.E.2d 514 (8th Dist.1996).
{¶ 12} In general, an employee of a political subdivision is immune from civil actions. See
A. Scope of Employment
{¶ 13} We find appellee was acting within the scope of her employment at the time of the incident. Though
{¶ 14} Here, we conclude that appellee was acting within the scope of her employment. Indeed, she attended the meeting in her official capacity as village solicitor. Though the meeting had ended at the time of the incident, people were still in the villagе offices and were attempting to leave the meeting. Appellant prevented this from happening by blocking the only exit. Appellee was attempting to clear the building
B. Malicious Purpose, Bad Faith, Wanton or Reckless Conduct
{¶ 15} Appellant next claims that appellee handled her wheelchair with a malicious purpose, in bad faith, or in a wanton or reckless mannеr. We disagree. Generally, issues concerning malicious purpose, bad faith, or wanton or reckless conduct are questions for the jury to decide. Schoenfield v. Navarre, 164 Ohio App.3d 571, 2005-Ohio-6407, 843 N.E.2d 234, ¶ 24 (6th Dist.), citing Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994). However, “summary judgment is appropriate in instances where the аlleged tortfeasor‘s actions show ‘that he did not intend to cause any harm***, did not breach a known duty through an ulterior motive or ill will, [and] did not have a dishonest purpose.‘” Id., quoting Fox v. Daley, 11th Dist. Trumbull No. 96-T-5453, 1997 WL 663670 (Sept. 7, 1997).
{¶ 16} Here, appellant failed to show that appellеe acted with a malicious purpose. Malicious purpose is the “‘willful and intentional design to do injury, or the intention or desire to harm another, usually seriously through * * * unlawful or unjustified conduct.‘” Id. at ¶ 22, quoting Cook v. Hubbard Exempted Village Bd. of Edn., 116 Ohio App.3d 564, 569, 688 N.E.2d 1058 (11th Dist.1996). Appellant has not pointed to any evidence establishing that appellee acted with a “willful and intentional design.” Appellant claims
{¶ 17} Appellant has also failed to show any bad faith on the part of appellee. Bad faith is akin to 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.‘” Id., quoting Jackson at 309. Appellant claims appellee acted with the dishonest purpose of intimidating her when she moved appellant‘s wheelchair out of the way so other attendees could leave the meeting. We find no evidence to show appellee acted with such a purpose. Rather, the record demonstrates that appellee‘s intent was to move appellant‘s wheelchair so that people who attended the meeting could leave. Appellee did not act with conscious wrongdoing or an ulterior motive.
{¶ 18} Appellant has also failed to show any wanton misconduct on the part of appellee. “Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is a great possibility that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 33. Simply moving a wheelchair out of a hallway does not create a circumstance in which there is а “great possibility that harm will result.” Id. Appellant stated that
{¶ 19} Finally, appellant has not shown appellee was reckless in her actions at the village offices. Reckless conduct is “charactеrized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Id., citing Thompson v. McNeill, 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705 (1990). Once again, moving a wheelchair to make room in a hallway does not pose a known or obvious risk of harm to another. Appellee‘s actions were also not unreasonable under the circumstances.
{¶ 20} As appellant has failed to show any issue of material fact that would cause a reasonable mind to conclude appellee is not entitled to qualified immunity, we hold that appellant‘s assignment of error is not well-taken.
III. Conclusion
{¶ 21} For the foregoing reasons, the judgment of the Lucas County Court of Cоmmon Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.