Craycraft v. SimmonsCraycraft v. Simmons
Rendered on the 12th day of November, 2010.
JEREMY M. TOMB, Atty. Reg. #0079664, and CHERYL COLLINS, Atty. Reg. #0085671, J.M. Tomb Law, LLC, 124 West Main Street, Troy, Ohio 45373 Attorneys for Plaintiff-Appellants
STEPHEN V. FREEZE, Atty. Reg. #0012173, Freund, Freeze & Arnold, One Dayton Centre, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Defendant-Appellees
BROGAN, J.
{¶ 1} Aaron Craycraft appeals from the trial court‘s entry of summary judgment against him on his complaint against appellee John Simmons alleging various torts.
{¶ 2} Craycraft advances five assignments of error on appeal. First, he contends the trial court erred in finding Simmons entitled to summary judgment on
{¶ 3} The present appeal stems from an incident that occurred on November 1, 2006 at the Miami Valley Career Technology Center (CTC), a two-year public joint vocational school. On that date, Craycraft, who was a student at the school, became angry in a class taught by Peggy Livingston and “pushed” his computer to the floor. (Craycraft affidavit, attached to Doc. #40 at Exh. A). He stood up and “accidentally stepped on the screen and broke the computer.” (Id.). He proceeded to leave the classroom and went elsewhere in the building to calm down. (Id.).1
{¶ 4} Simmons is employed as the safety coordinator at CTC. At the time of the incident, he was in Columbus giving a work-related presentation. (Simmons depo. at 85). One of his assistants, Marilyn Jones, a safety officer at the school, began an investigation of the incident in his absence. She talked to students, obtained written statements, and conveyed the information to Simmons that same
{¶ 5} “Aaron today backed talk to the teacher usually giving his normal tantrum and then the teacher sends him somewhere, I don‘t know, but today he threw his computer and stopped on it. I became very scared and I heard a lot that he is saving for a gun and kill us. I don‘t know who but I know I‘m scared for Mrs. Livingston because he always talks about how he hates Mrs. Livingston. I never really talked to Aaron but he sits at our table sometimes and he is nice. But in class he says some disturbing things and you think OK that‘s weird. Please do the best you can to protect us. I am very scared and now I feel like I should go back to school.
{¶ 6} “People you might want to talk to who know more info * * * they said that he‘s saving up for a gun and that if you expel him HE WILL COME BACK!! Please take severe caution with this. Thank you.”
{¶ 7} Another student‘s statement reads:
{¶ 8} “[Aaron‘s] said he has a 1,000 dead body in his garage. I feel very threaten. We just had an [incident] today with him. I think he is really capable of doing the thing he‘s said‘s. Like he will shoot everyone.”
{¶ 9} A third statement reads:
{¶ 10} “We were in Mrs. Livingston‘s class. [Aaron] got outraged and threw his laptop at teacher‘s desk and stomped on it and then started cussing and then ran out and slammed the door.
{¶ 11} “A few weeks ago he told the class that if by some chance he would bring a gun to school he wouldn‘t shoot any of us.
{¶ 12} “Then he was talking about 1000 dead babies in his garage.”
{¶ 13} A fourth statement reads:
{¶ 14} “On 11-1-06 in Mrs. Livingston‘s class 7th period Aaron Craycraft got mad and through his computer at her desk because Mrs. Livingston told Micheal to sit down and Aaron told her he was just asking Mike for help. Then he stomped on it and started cussing. He slammed open the door and left.
{¶ 15} “A couple weeks ago Aaron said we didn‘t have to worry because if he ever brought a gun to school he wouldn‘t shoot us.”
{¶ 16} As a result of the incident in Livingston‘s class, CTC assistant superintendent Sam Custer called Simmons in Columbus and asked him to return to the school. (Simmons depo. at 87). Custer asked Simmons “to come back to the school and be there because of the situation that had occurred and that there was a concern that Aaron was coming back with a gun.” (Id. at 88-89). Simmons arrived at CTC around 6:00 p.m. and met with Custer and another assistant superintendent, Mary Beth Freeman. They discussed “[t]he situation that occurred, the panic that had become involved, parents being called, parents calling in and expressing their concern on whether or not they should send their kids to school and whether or not [Simmons] was going to contact the Englewood Police Department and get them involved.” (Id. at 89). During the meeting, Freeman and Custer directed Simmons to contact the police. (Id. at 90, 93). They made that decision based on the contents of
{¶ 17} Simmons first called the Englewood police chief on the telephone. The police chief directed him to go to the police station. (Id. at 98). After arriving at the station, Simmons spoke on the phone with a student, Jennifer Fitzgerald, and then gave police a handwritten statement. (Id. at 99-104). In relevant part, Simmons’ police statement reads:
{¶ 18} “Ms. Fitzgerald advised that she was present in the classroom when Aaron Craycraft exploded smashing his school-issued laptop computer onto the floor. She further stated to me that she had heard Aaron make a statement that he was going to bring a gun to school and shoot people. And Ms. Livingston was on his list.
{¶ 19} “Ms. Fitzgerald was requested to report in the morning and give a written statement at that time. She agreed. She further stated that she was fearful of Aaron carrying out his threats.” (Id. at 107; see, also, Simmons depo. Exh. 1).
{¶ 20} As noted above, before writing his police statement, Simmons had spoken with CTC safety officer Marilyn Jones and had been made aware of the written statements from several students at CTC. (Id. at 109, 115-116, 135). When providing his statement to the police, however, he did not list all of the students who had given written statements to Jones. He only listed Fitzgerald as a reference in his police statement because he personally had spoken to her, and she had promised to provide her own written statement to school officials the following day. (Simmons affidavit, at ¶13).
{¶ 22} “I don‘t know Aaron persay, but I know that he‘s been known to flip out and recently he‘s been talking about guns and he is very serious about it all. He‘s got a bad temper I guess you could say and he‘s serious. He doesn‘t like Mrs. Livingston and he‘s mentioned she‘d be first on the list. Things have gotten worse since him and his girlfriend broke up and more than just me has noticed it. [R]ecently he made a comment to a student who was pregnant about punching her in the stomach because no one should want to have a stupid baby. He likes to dress as a pirate and he wears big combat boots that were very expensive. Along with his jacket. So he could easily have money for a gun. Another comment he‘s made was a joke saying what‘s the difference between a Mercedes and 1000 dead babies and he said he didn‘t have a Mercedes in his garage. He‘s crazy and after yesterday, I could see him doing something crazy like bringing a gun to school. He wouldn‘t think twice.” (Fitzgerald statement, attached to Doc. #14 at Exh. 2).
{¶ 23} Although Simmons did not ask for Craycraft to be arrested, he nevertheless was arrested in the evening after Simmons’ police report. (Craycraft affidavit, at ¶15; Simmons affidavit, at ¶15). Craycraft learned that he had been “accused of threatening to bring a gun to school and shoot people on a ‘list.‘” (Craycraft affidavit at ¶15.). He was detained in the Montgomery County juvenile detention center for more than a week. (Id. at ¶16). He was charged with criminal damaging, aggravated menacing, and inducing a panic. He ultimately pled guilty to “reduced charges.” (Id. at ¶18). He also was expelled from school. (Id. at ¶17).
{¶ 25} In April 2008, Craycraft and his parents filed the present action against Simmons, alleging claims for false imprisonment, malicious prosecution, intentional infliction of emotional distress, defamation, false-light invasion of privacy, and loss of consortium. (Doc. #1). Accompanying the complaint is an affidavit from Jennifer Fitzgerald in which she avers:
{¶ 26} “1. I am a full adult and have personal knowledge of all matters herein contained;
{¶ 27} “2. I was present in Mrs. Livingston‘s class at Miami Valley Career Technology Center on November 1, 2006 and witnessed Aaron Craycraft throw a computer to the ground, stomp on it, then leave the classroom;
{¶ 28} “3. I have never personally heard Aaron Craycraft state that he would bring a gun to school;
{¶ 29} “4. I have never personally heard Aaron Craycraft state that he would or desired to shoot Mrs. Livingston or any other person;
{¶ 30} “5. I never stated to John C. Simmons or any other person that I heard Aaron Craycraft state that he would bring a gun to school, that he wanted to shoot Mrs. Livingston, or that he had a ‘list’ that included Mrs. Livingston.”
{¶ 32} In April 2009, Simmons moved for summary judgment on all the claims against him. Before responding, Craycraft filed an amended complaint, adding CTC, Marilyn Jones, and the State of Ohio as defendants.3 The amended complaint also added general negligence and negligence per se claims against Simmons. The trial court later sustained Simmons’ summary judgment motion in October 2009, finding him entitled to statutory immunity as an employee of a political subdivision. The trial court nevertheless proceeded to address each of the claims, finding that Simmons would be entitled to summary judgment on all but the false-imprisonment claim. The trial court‘s summary judgment ruling contained
{¶ 33} In his first assignment of error, Craycraft contends the trial court erred in entering summary judgment in favor of Simmons on the basis of sovereign immunity. In finding Simmons entitled to immunity, the trial court relied on
{¶ 34} “(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by an act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
{¶ 35} “(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
{¶ 36} “(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;
{¶ 37} “(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{¶ 38} “(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code.”
{¶ 39} Craycraft claims the trial court improperly found Simmons entitled to immunity under
{¶ 40} Our de novo review of the trial court‘s ruling follows
{¶ 41} With the foregoing standards in mind, we conclude that Simmons was entitled to summary judgment on the basis of
{¶ 42} Craycraft‘s only argument is that Simmons has no preset protocol to
{¶ 43} In Behner, the Ohio Supreme Court explained:
{¶ 44} “Whether an individual performing service for another does so as an independent contractor or as an employee is ordinarily a question of fact, the deciding factor being in whom is vested the right of control or superintence as to the details of the work. It is not the fact of actual interference in control on the part of the one for whom the work is performed, but the right to interfere therewith which distinguishes the relationship of an independent contractor from that of a servant or agent. If the right to control the manner or means of performing the work is in the person for whom the work is performed, the relationship is that of employer and employee or master and servant; but if the control of the manner or means of performing the work is delegated to the person performing the work, the relationship is that of independent contractor.” Id. at 436-437 (emphasis added).
{¶ 45} In our view, Behner fails to support Craycraft‘s argument. Although Simmons was granted the discretion to conduct investigations as he saw fit, nothing
{¶ 46} “Whether a person is an independent contractor or an employee depends on the specific facts in the case, with the key question being who has the right to control the manner or means of performing the work.” Brown v. CDS Transport, Inc., Franklin App. No. 10AP-46, 2010-Ohio-4606, ¶9, citing Bostic v. Connor (1988), 37 Ohio St.3d 144. “Factors that are considered in determining who
{¶ 47} “Generally, the independent contractor-employee issue is one that must be determined by the trier of fact. * * * However, when the evidence is not in conflict or where the facts are not in dispute, the issue becomes a matter of law that may be decided by the trial court.” Id. at ¶10. In the present case, the record persuades us that Simmons’ supervisors retained the right to control the manner or means of how he performed his work. The fact that Simmons’ position allowed for some discretion, without more, does not raise a genuine issue of material fact. We find no error in the trial court‘s determination that Simmons qualified as a CTC employee as a matter of law.
{¶ 48} The trial court also correctly determined that Simmons did not act manifestly outside the scope of his employment when he investigated the Craycraft incident and made a report to the police. With regard to the scope of Simmons’ duties, Craycraft argues that the incident “was already under investigation by Marilyn Jones and had already been referred to the principal by the time Simmons became involved.” Craycraft asserts that he already had been suspended from school for several days. He reasons that “Simmons’ employment duties would seem to have ended at that point, or at least required him to actually investigate the matter before taking further action.”
{¶ 49} Upon review, we find no genuine issue of material fact as to whether
{¶ 50} In our view, the foregoing activities manifestly were within the scope of Simmons’ employment as CTC‘s head safety coordinator. The fact that one of Simmons’ subordinates, Jones, already had commenced an investigation does not take his additional investigative activities outside the scope of his employment. Nor does the fact, stressed by Craycraft, that Simmons conceivably could have conducted a more thorough investigation. The question is not whether Simmons could have done more. Rather, the question is whether the acts he did perform were within the scope of his employment. The trial court correctly concluded that they were.
{¶ 51} The remaining issue is whether Simmons acted recklessly in making his report to the police. “An individual acts ‘recklessly’ when he ‘does an act or intentionally fails to do an act which is in his duty to the other to do, knowing or
{¶ 52} In the present case, Craycraft asserts that Simmons acted recklessly with regard to his police report in two respects: (1) he failed to inform police that Craycraft had been diagnosed with a condition known as Asperger‘s Syndrome, and (2) he attributed certain statements to Jennifer Fitzgerald that she later denied making. As for the former issue, the record does reflect that Craycraft had been diagnosed with Asperger‘s Syndrome and that Simmons was aware of the diagnosis. (Simmons depo. at 78).5 Asperger‘s Syndrome causes Craycraft to have behavioral issues and difficulty interacting with others. (Beth Craycraft affidavit, attached to Doc. #40 at Exh. B). On appeal, Craycraft asserts that the condition also causes “extreme impulsivity” and “inability to understand another‘s point of view[.]” (Appellant‘s brief at
{¶ 53} We do not see how Simmons’ failure to mention Craycraft‘s diagnosis with Asperger‘s Syndrome is evidence of recklessness, at least against Craycraft. If anything, the existence of a medical condition that renders Craycraft extremely impulsive and somewhat anti-social would seem to make him more dangerous, not less. Therefore, including this information in Simmons’ police report could not possibly have benefitted Craycraft. Although Craycraft contends students should not be punished for having a condition such as Asperger‘s Syndrome, the issue confronting Simmons and his supervisors concerned the potential security of CTC‘s students. It is unreasonable to suggest that Simmons should have overlooked, or taken less seriously, the potential security threat Craycraft posed simply because that threat may have been attributable in some measure to Asperger‘s Syndrome.
{¶ 54} As for the statements that Simmons attributed to Jennifer Fitzgerald in his police report, the issue is a closer one. In finding that Simmons did not act recklessly when he gave his police statement, the trial court reasoned:
{¶ 55} “For purposes of the statutory immunities provided in
{¶ 56} “The evidence does not support a determination that Mr. Simmons intended to injure Plaintiff or purposefully acted with appreciation of the likelihood of resulting injury to Plaintiff. Prior to giving a statement to the Englewood Police, Mr. Simmons and his assistant investigated the incident by taking both verbal and written statements from witnesses. The written statements showed that students believed that Plaintiff had contemplated bringing a gun to school. One student claimed Plaintiff said he would shoot everyone, and another student begged the school to ‘protect us’ and ‘take severe caution’ claiming Plaintiff was saving for a gun to kill us. In addition, Mr. Simmons had verbally interviewed Jennifer Fitzgerald on her observations of the incident, which confirmed that there was a possibility of a school shooting. Plaintiff‘s statements to Jennifer Fitzgerald which she disclosed to Mr. Simmons involved rather bizarre analogies to death. These statements referenced ‘1,000 dead babies’ and punching a ‘pregnant student in the stomach.’ Certainly, by inference, Plaintiff was indicating a disregard for life and his apparent approval of an execution of killing.
{¶ 57} “* * *
{¶ 58} “Although he had been involved with Plaintiff‘s discipline on a number
{¶ 59} “Mr. Simmons, having some notice of Aaron‘s physical and mental health issues, should treat him somewhat differently. He would, as indicated, have to act with care, but the conditions do not alone eliminate the prospect of risk to faculty, staff and fellow students. Although one has an illness or condition which could potentially limit their responsibility for adverse behavior, safety personnel still must try to prevent injury which is foreseeable. The evidence here is that Mr. Simmons acted out of concern for faculty, staff and students, not in any punitive manner against Plaintiff. Just because Plaintiff has some health or personal disabilities, does not mean that one charged with insuring safety must act overly cautious when some of the overt manifestations of Plaintiff‘s conditions indicate danger to others.
{¶ 60} “Plaintiff makes the assertion that Mr. Simmons’ statement to the police was made maliciously or recklessly because the substance of such statement was false. That is not correct. Mr. Simmons cited Jennifer Fitzgerald as a reference in his police report because he had personally spoken to her that day. His assistant took the other witnesses’ statements and then relayed that information to him. Because Mr. Simmons was not there to personally witness Plaintiff‘s behavior, it was necessary for him to rely on statements provided by witnesses, in order to comply
{¶ 61} “The substance of Mr. Simmons’ statement to the police is confirmed by the written statement provided the next day. In both, Ms. Fitzgerald agreed she heard Plaintiff say that Ms. Livingston would be the first on his ‘list.’ In both, Ms. Fitzgerald relates that she is afraid that Plaintiff will carry out his threats. In both, she relates her suspicions that Plaintiff will bring a gun to school. For whatever reason, Ms. Fitzgerald later states in her affidavit that she never directly heard plaintiff say he would bring a gun to school and shoot people. Ms. Fitzgerald does not retract, however, that she had reason to believe that Plaintiff was capable of bringing a gun to school and shooting people.
{¶ 62} “Mr. Simmons and his assistant investigated the incident by speaking to multiple witnesses. These statements caused Mr. Simmons to believe Plaintiff posed a threat to the safety and security of MVCTC. Based on these statements, Mr. Simmons reasonably concluded that Plaintiff either had plans to or was contemplating bringing a gun to school. It was further reasonable for Mr. Simmons to believe that students felt endangered by Plaintiff. Accordingly, Mr. Simmons’ act of contacting the local police was to ensure the safety of the students he was charged with protecting. Such conduct under those circumstances was not unlawful or unjustified.
{¶ 64} Upon review, we likewise find no genuine issue of material fact on the issue of recklessness. With images of the 1999 Columbine High School shooting and similar incidents etched in the nation‘s memory, we agree with the trial court that Simmons, the head safety coordinator at CTC, did not act recklessly in filing his police report. As the trial court noted, when he filed the report, Simmons had reviewed several written statements from students who expressed fear about Craycraft returning to school with a gun. One of the students had “heard a lot that he is saving for a gun and kill us.” The same student wrote that others had “said that he‘s saving up for a gun and that if you expel him HE WILL COME BACK!!” A second student wrote: “I think he is really capable of doing the thing he‘s said‘s. Like he will shoot everyone.” A third student stated: “A few weeks ago he told the class that if by some chance he would bring a gun to school he wouldn‘t shoot any of us.” A fourth student gave a similar statement, noting that “Aaron said we didn‘t have to worry because if he ever brought a gun to school he wouldn‘t shoot us.” Although Simmons did not cite each of these statements in his police report, he was aware of them and
{¶ 65} Craycraft makes much of the fact that Simmons’ police report attributes certain statements to Jennifer Fitzgerald that she later denied in her affidavit. We do recognize one significant discrepancy, namely whether Fitzgerald ever personally heard Craycraft say he was going to bring a gun to school and shoot people. In her affidavit, she denied telling Simmons that she personally heard this. We note, however, that the written statement Fitzgerald provided for CTC the day after the incident did express her serious concern about Craycraft bringing a gun to school and shooting people. As noted above, Fitzgerald reported that Craycraft had “been known to flip out and recently he‘s been talking about guns and he is very serious about it all.” She added: “He‘s got a bad temper I guess you could say and he‘s serious. He doesn‘t like Mrs. Livingston and he‘s mentioned she‘d be first on the list.” Finally, she expressed her opinion that “he could easily have money for a gun” and that “[h]e‘s crazy and after yesterday, I could see him doing something crazy like bringing a gun to school.” Although this written statement does not reference the unambiguous, direct threat mentioned in Simmons’ police report (which Simmons concedes was not a verbatim recitation of what Fitzgerald told him), it is consistent with much of the other students’ written statements about Craycraft bringing a gun to school and shooting people. It also corroborates the part of Simmons’ police report in which he mentioned Fitzgerald telling him a teacher, Peggy Livingston, was on Craycraft‘s “list.”
{¶ 66} Even if we assume, as we must for summary judgment purposes, that
{¶ 67} Our resolution of the immunity issue renders moot Craycraft‘s remaining assignments of error, which presume that
{¶ 68} The judgment of the Montgomery County Common Pleas Court is affirmed.
CANNON, J., concurs.
GRADY, J., concurring:
{¶ 69} I understand Craycraft‘s argument that Simmons was reckless in failing to inform police that Craycraft has been diagnosed with Asperger‘s Syndrome to be a contention that his resulting behavior would cause others to perceive Craycraft to be dangerous when he is not. Had Simmons made police aware of that fact, they might have proceeded differently, instead of arresting Craycraft. However, Simmons‘s failure is, at most, a matter of negligence. Reasonable minds could not find that it rose to the level of recklessness.
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