Buck v. RemindervilleBuck v. Reminderville
Dated: December 30, 2010
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} Jeffrey Buck, chief of police for the Village of Reminderville, sued the Village and Sergeant Michael Varga for defamation. He alleged that Sergeant Varga emailed a letter to Village council members that contained false and defamatory accusations regarding his performance as police chief. He alleged that the Village improperly allowed the letter to circulate to other Village officials, improperly allowed it to be read aloud during a human resources committee meeting, and improperly made it a public record. He further alleged that Sergeant Varga’s publication and the Village’s republication of the letter was done maliciously with the intent to interfere with his employment relationship. The Village moved for judgment on the pleadings under
POLITICAL SUBDIVISION IMMUNITY
{¶2} The Village’s assignment of error is that the trial court incorrectly denied its motion for judgment on the pleadings. It has argued that it has immunity under
{¶3} Although motions under
{¶4} Determining whether a political subdivision has immunity under
{¶5} The Village has argued that Mr. Buck’s argument fails under this Court’s decision in Ellithorp v. Barberton City School District Board of Education, 9th Dist. No. 18029, 1997 WL 416333 (July 9, 1997). In Ellithorp, we determined that
{¶6} Mr. Buck has urged us to reconsider our holding in Ellithorp in light of the Ohio Supreme Court’s decision in Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227, 2003-Ohio-3373. In Penn Traffic, Virginia Ramsey was injured when she fell off a loading dock while working for Penn Traffic. She sued Penn Traffic and obtained a judgment against it for intentional tort. Penn Traffic filed a declaratory judgment action seeking a determination of its right to indemnification from its insurers. Its commercial general liability policy contained an exclusion regarding “bodily injury to an employee of the insured ‘arising out of and in the course of employment by the insured.’” Id. at ¶36. Penn Traffic argued that the exclusion did not apply because, under Brady and Blankenship, employer intentional torts occur outside the employment relationship. The Ohio Supreme Court disagreed, noting that, in Blankenship, “this court determined that the immunity bestowed upon employers under Ohio’s workers’ compensation laws does not reach intentional torts committed by an employer. The court reasoned that an employer’s intentional tort occurs outside the employment relationship. . . . But in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, this court clarified that an injured worker may both recover under the workers’ compensation system and pursue an action against his or her employer for intentional tort. Therefore, an injury that is the product of an
{¶7} The Ohio Supreme Court explained: ”Blankenship and Jones involve a common-law action for employer intentional tort as it relates to a workers’ compensation claim. They do not involve analysis of the terms of a private insurance policy or the relationship between an employee and the employer‘s liability insurer. Although an employer intentional tort occurs outside the employment relationship for purposes of recognizing a common-law cause of action for intentional tort, the injury itself must arise out of or in the course of employment; otherwise, there can be no employer intentional tort.” Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227, 2003-Ohio-3373, at ¶40. The Supreme Court concluded that, “[f]or purposes of the employer’s insurance coverage, language in a [commercial general liability] policy that excludes injuries that ‘arise out of or in the course of employment’ merely means that the injury is causally related to one’s employment.” Id. at ¶41.
{¶8} In Penn Traffic, the Ohio Supreme Court distinguished Blankenship by saying that Blankenship focused on the intentional conduct of the employer while the commercial general liability policy focused on the injury suffered by the employee. Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227, 2003-Ohio-3373, at ¶40. The distinction is difficult to see considering that both cases involved the interpretation of substantially similar language, the workers’ compensation immunity statute at issue in Blankenship requiring the Court to determine whether the poisoning Mr. Blankenship suffered was an “injury . . . received . . . by any employee in the course of or arising out of his employment” and the commercial general liability insurance policy at issue in Penn Traffic requiring the Court to determine whether Ms. Ramsey’s injury was “bodily injury to ‘an employee of the insured arising out of and in the course of
{¶9} It should be noted that, part of the Supreme Court’s rationale in Blankenship was that the “workers’ compensation Acts were designed to improve the plight of the injured worker, and to hold that intentional torts are covered under the Act would be tantamount to encouraging such conduct, and this clearly cannot be reconciled with the motivating spirit and purpose of the Act.” Blankenship v. Cincinnati Milacron Chems. Inc., 69 Ohio St. 2d 608, 614 (1982). “[O]ne of the avowed purposes of the Act is to promote a safe and injury-free work environment. . . . Affording an employer immunity for his intentional behavior certainly would not promote such an environment, for an employer could commit intentional acts with impunity with the knowledge that, at the very most, his workers’ compensation premiums may rise slightly.” Id. at 615.
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{¶12} Our analysis is consistent with that of several other districts. Before Penn Traffic, most Ohio district courts, following Blankenship and Brady, concluded that employer intentional torts do not arise out of the employment relationship. Terry v. Ottawa Bd. of Mental Retardation and Developmental Disabilities, 151 Ohio App. 3d 234, 2002-Ohio-7299, at ¶21; Chase v. Brooklyn City Sch. Dist., 141 Ohio App. 3d 9, 19 (2001); Stanley v. City of Miamisburg, 2d Dist. No. 17912, 2000 WL 84645 at *7-8 (Jan. 28, 2000); Sablusky v. Trumbull County, 11th Dist. No. 2001-T-0084, 2002-Ohio-7275, at ¶18; Fabian v. City of Steubenville, 7th Dist. No. 00 JE 33, 2001 WL 1199061 at *3-4 (Sept. 28, 2001); Engleman v. Cincinnati Bd. of Educ., 1st Dist. No. C-000597, 2001 WL 705575 at *4-5 (June 22, 2001). But see Marcum v. Rice, 10th Dist. Nos. 98AP-717, 98AP-721, 98AP-718, 98AP-719, 1999 WL 513813 at *6-7 (July 20, 1999). After Penn Traffic, however, some of those districts have reexamined the issue and have also concluded that Blankenship and Brady do not act as a per se bar to intentional tort claims by political subdivision employees against their employers. Sampson v. Cuyahoga Metro. Hous. Auth., 188 Ohio App. 3d 250, 2010-Ohio-3415, at ¶33 (en banc); Nagel v. Horner, 162 Ohio App. 3d 221, 2005-Ohio-3574, at ¶18; Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 1st Dist. No. C-090015, 2009-Ohio-6801, at ¶11-13; Fleming v. Ashtabula Area City Sch. Dist. Bd. of Educ., 11th Dist. No. 2006-A-0030, 2008-Ohio-1892, at ¶41. Other districts have continued to apply Brady and Blankenship to political subdivision immunity cases, but most of their decisions have not considered Penn Traffic, relying only on the cases resolved before it. See Zieber v. Heffelfinger, 5th Dist. No. 08CA0042, 2009-Ohio-1227, at ¶29 (no discussion of Penn Traffic); Coats v. Columbus, 10th Dist. No. 06AP-681, 2007-Ohio-761, at ¶15 (same); Coolidge v. Riegle, 3d Dist. No. 5-02-59, 2004-Ohio-347, at ¶30 (same). But see Williams v. McFarland Props. LLC, 177 Ohio App. 3d 490, 2008-Ohio-3594, at ¶18 (concluding that Penn Traffic is limited “to situations involving the applicability of recovery under a private insurance policy.“) (quoting Thayer v. W. Carrollton Bd. of Educ., 2d Dist. No. 20063, 2004-Ohio-3921, at ¶17).
{¶13} In Engleman v. Cincinnati Board of Education, 1st Dist. No. C-000597, 2001 WL 705575 (June 22, 2001), limited by Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 1st Dist. No. C-090015, 2009-Ohio-6801, the First District reasoned that, to include intentional torts
{¶14} Another concern that courts have had about intentional tort claims by political subdivision employees has to do with the interplay between Sections 2744.09(B) and 4123.74 of the
{¶15} Mr. Buck’s complaint alleged that Sergeant Varga’s letter made false and defamatory accusations about his performance as chief of police, damaged his reputation, and “injure[d] [him] in his trade or occupation.” Viewing Mr. Buck’s allegations in a light most favorable to him, we conclude that his intentional defamation claim may relate to his employment under
CONCLUSION
{¶16} To the extent Ellithorp v. Barberton City School District Board of Education, 9th Dist. No. 18029, 1997 WL 416333 at *3 (July 9, 1997) and Dolis v. City of Tallmadge, 9th Dist. No. 21803, 2004-Ohio-4454, at *2 (Aug. 25, 2004), held that a political subdivision employer’s intentional tort can never be subject to the political subdivision immunity exclusion under
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to appellant.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶17} I concur in most of the majority opinion. I do not join in paragraphs 13 and 14, which I regard as unnecessary dicta.
CARR, J. DISSENTS, SAYING:
{¶18} I respectfully dissent as I would continue to follow our prior precedent in Ellithorp v. Barberton City School Dist. Bd. of Edn. (July 9, 1997), 9th Dist. No. 18029, and Dolis v. Tallmadge, 9th Dist. No. 21803, 2004-Ohio-4454, at ¶6.
JOHN D. LATCHNEY, attorney at law, for appellant.
KENNETH D. MYERS, attorney at law, for appellee.