AARON CRAYCRAFT, et al. v. JOHN C. SIMMONS, et al.
Appellate Case No. 24313
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
June 30, 2011
2011-Ohio-3273
HALL, J.
Trial Court Case No. 08-CV-4049; (Civil Appeal from Common Pleas Court)
Attorneys for Plaintiff-Appellants
STEPHEN V. FREEZE, Atty. Reg. #0012173, Freund, Freeze & Arnold, One Dayton Centre, 1 South Main Street, Dayton, Ohio 45402
Attorney for Defendant-Appellees
MICHAEL DeWINE, by MICHAEL J. SCHULER, Atty. Reg. #0082390, OHIO ATTORNEY GENERAL‘S OFFICE, Constitutional Offices Section, 30 East Broad Street, 16th floor, Columbus, Ohio 43215
Attorney for Defendant-Appellee, State of Ohio
OPINION
Rendered on the 30th day of June, 2011.
HALL, J.
{1} Aaron Craycraft appeals from the trial court‘s entry of summary judgment against him on his tort complaint against appellees John Simmons, Marilyn Jones, and the
{2} Craycraft advances three assignments of error on appeal. First, he contends the trial court erred in entering summary judgment on the basis that his claims were barred by
{3} This is Craycraft‘s second appeal stemming 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 became angry in class and destroyed a computer. While investigating the incident, Simmons, the safety coordinator at CTC, and Jones, one of his assistants, obtained written statements from several students who expressed concern about Craycraft returning to school with a gun and shooting people. One of the students had “heard a lot that he is saving for a gun and kill us (sic).” 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[.] 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.”
{4} Two CTC assistant superintendents, Sam Custer and Mary Beth Freeman, directed Simmons to contact the police. After arriving at the police station, Simmons spoke on the phone with another student, Jennifer Fitzgerald, and then gave police a handwritten
{5} “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 [his teacher] Ms. Livingston was on his list.
{6} “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.”
{7} Fitzgerald provided her own written statement to CTC the following day. It read:
{8} “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.”
{9} Craycraft was arrested in the evening after Simmons‘s police report. At that
{10} In an affidavit, Craycraft stated he “never threatened to bring a gun to school to shoot people.” The only gun he ever discussed at school was a replica Prussian revolutionary pistol. Craycraft claimed he never told people he would shoot them and never created a list of people he would shoot. He also denied making any statement on November 1, 2006, that he would bring a gun to school and shoot people and that Mrs. Livingston was on his list.
{11} 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. Accompanying the complaint was an affidavit from Jennifer Fitzgerald. Therein, she denied personally hearing Craycraft say he would bring a gun to school or that he would, or wanted to, shoot anyone. Fitzgerald also denied telling Simmons these things.
{12} In a deposition, Simmons addressed the apparent discrepancy between his police statement and what Fitzgerald stated in her affidavit. Simmons asserted that Fitzgerald told him she had been threatened with a lawsuit, badgered, and coerced by the law firm representing Craycraft into signing the affidavit. According to Simmons, Fitzgerald told him that she had signed under duress and that she was willing to “sign anything” just to get Craycraft‘s attorney “off her back.”
{13} In April 2009, Simmons moved for summary judgment on the claims against
{14} On November 12, 2010, this Court affirmed the trial court‘s entry of summary judgment in favor of Simmons. In so doing, this Court concluded that he was entitled to summary judgment on the basis of
{15} While the first appeal was pending, the trial court made two additional rulings, declaring
{16} In his first assignment of error, Craycraft contends the trial court erred in entering summary judgment against him on the basis of
{17} We review summary judgment de novo, which means that “we apply the standards used by the trial court.” Brinkman v. Doughty (2000), 140 Ohio App.3d 494, 497. Summary judgment is appropriate when a trial court finds “that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66.
{18} We begin our analysis by addressing CTC‘s immunity under
{19} see, also, Ezerski v. Mendenhall, 188 Ohio App.3d 126, 2010-Ohio-1904, ¶5.
{20} In the present case, Craycraft does not dispute that CTC, a public school, qualifies as a political subdivision for purposes of immunity under
{21} The “provision of a system of public education” is expressly identified in
{22} In reaching the foregoing conclusion, we reject Craycraft‘s assertion that providing school security is not a governmental function because independent contractors sometimes perform the job. We do not dispute that a school may choose to contract with a private company to provide security. But this does not negate the fact that the nature of the work involved, providing security for public school students on school grounds, is a governmental function. Craycraft‘s argument fails to recognize that a political subdivision may use independent contractors to perform a governmental function. See, e.g., Howell v. Canton, Stark App. No. 2007CA00035, 2008-Ohio-5558 (involving an independent contractor hired to perform a governmental function). He cites nothing to establish that doing so transforms the activity involved from a governmental function into a proprietary function.
{23} We turn next to Craycraft‘s argument that Simmons and Jones lacked immunity because they were acting outside the scope of their employment. This Court‘s prior decision resolved the scope-of-employment issue with regard to Simmons, reasoning:
{24} “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
{25} “Upon review, we find no genuine issue of material fact as to whether Simmons was acting within the scope of his employment. His job responsibilities included maintaining a safe campus, investigating incidents, and reporting those incidents to his supervisors and, sometimes, to the police. (Simmons depo. at 33-34, 62-64). As set forth above, Simmons was summoned back from Columbus to discuss the Craycraft incident with his two assistant superintendents, Mary Beth Freeman and Sam Custer. He reviewed the written statements that had been obtained by Marilyn Jones in his absence. He then met with Freeman and Custer to discuss the incident further and to decide what to do. As explained above, Freeman and Custer ultimately directed him to contact the Englewood police department. While at the police station, Simmons spoke with a witness, student Jennifer Fitzgerald, and then filed a written statement.
{26} “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
{27} Craycraft cites nothing in his present appeal to alter the prior determination that Simmons‘s actions were within the scope of his employment as CTC‘s safety coordinator. Therefore, we conclude that Simmons was acting within the scope of his employment when he conducted his investigation and contacted the police.2
{28} We reach the same conclusion with regard to Jones. As set forth above, Jones, a CTC safety officer, served as one of Simmons‘s assistants. She testified that her job duties include “protecting staff and students” and “investigating incidents that occur at the school.” In Simmons‘s absence, Jones initiated an investigation into the Craycraft incident by talking to students, obtaining statements, and conveying her findings to Simmons. We harbor no doubt that these actions were within the scope of Jones‘s employment as one of CTC‘s safety officers.
{29} On appeal, however, Craycraft takes issue with Jones‘s alleged decision to create a poster bearing his picture with a caption warning that he was dangerous and had threatened to shoot everyone. Craycraft contends Jones acted outside the scope of her employment by creating the poster and placing it where faculty and students could view it.
{30} In the proceedings below, Jones admitted printing a poster with Craycraft‘s picture on it. She denied writing on the poster or placing it in public view. She testified that she placed it only in CTC‘s safety office. On appeal, the only evidence Craycraft cites concerning Jones‘s involvement with the poster is the deposition testimony of Ernie Stone,
{31} Having reviewed Stone‘s and Simmons‘s deposition, we see nothing to suggest that Jones acted outside the scope of her employment with regard to the poster of Craycraft. Even if we accept Craycraft‘s largely unsupported assertion that Jones was responsible for the caption and for placing the poster in locations outside the security office, these actions manifestly were within the scope of her employment as a CTC security officer. We see no genuine issue of material fact for trial.
{32} Finally, we reject Craycraft‘s argument that Simmons and Jones were not entitled to immunity because they acted willfully and wantonly, in bad faith, or maliciously. The trial court saw no evidence to support such a finding, and neither do we. The prior ruling
{33} “* * * 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[.] 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 they were part of the reason he contacted the Englewood police and filed the statement he did. (Simmons affidavit at ¶7, 9, 11, 13).
{34} “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
{35} “Even if we assume, as we must for summary judgment purposes, that Simmons inaccurately quoted Fitzgerald in his police report, based on all of the evidence before us we find no genuine issue of material fact as to whether Simmons, CTC‘s head security official, acted recklessly in filing the report. Accordingly, we agree with the trial court that Simmons is entitled to
{36} For essentially the same reasons that this Court previously found no genuine issue of material fact on the issue of Simmons‘s recklessness, we now find no genuine issue of material fact as to whether he acted willfully and wantonly, in bad faith, or maliciously. We
{37} In his second assignment of error, Craycraft claims the trial court erred in upholding the constitutionality of
{38} In his third assignment of error, Craycraft asserts that the trial court erred in entering summary judgment against him on his various tort claims against the appellees. In support, he presumes that
{39} The judgment of the Montgomery County Common Pleas Court is affirmed.
FAIN, J. and FROELICH, JJ., concur.
Copies mailed to:
Jeremy M. Tomb
Cheryl L. Collins
Stephen V. Freeze
Michael DeWine
Michael J. Schuler
Hon. Timothy J. O‘Connell