Lead Opinion
{¶ 2} Appellee Mark Allen is a deputy sheriff and K-9 officer with the Ashtabula County Sheriffs Office. On April 10, 2002, Allen was scheduled to work from 3:00 p.m. to 11:00 p.m. Allen and his K-9 partner Mick, left for work at approximately 2:30 p.m. When Allen left his house, Mick was off his lead. Allen went to his patrol car to put water in Mick's cage, while Mick relieved himself. Allen then heard Mick barking and went to investigate. Allen found eighty-five year old Rosalie Hicks on the ground with Mick standing over her barking. Rosalie reported that she had been standing near her burn barrel when Mick jumped on her and knocked her down. Rosalie suffered a broken hip because of this incident.
{¶ 3} Rosalie filed the instant action seeking compensation for her injuries. Paul filed a loss of consortium claim. Appellants sued Allen individually and in his official capacity as a deputy sheriff for Ashtabula County.
{¶ 4} Appellees moved for summary judgment. In support of their motion, appellees argued they were entitled to immunity under R.C.
{¶ 5} "[1.] It was an abuse of discretion and error of law for the trial court to grant summary judgment in appellees' favor." *3
{¶ 6} "[2.] An employee of a political subdivision who acts negligently outside of the course and scope of his employment is not shielded from liability under R.C. 2744, et seq. from individual liability."
{¶ 7} "[3.] The trial court erred in determining that [a]ppellees are protected by the sovereign immunity statute when the facts of the case reflect that exceptions to the application of sovereign immunity clearly apply."
{¶ 8} We review a grant of summary judgment de novo. Grafton v. OhioEdison Co. (1996),
{¶ 9} Summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (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, and viewing such evidence most strongly in favor of the party against whom the motion is made, that conclusion is adverse to that party. Harless v. Willis DayWarehousing, Inc. (1978),
{¶ 10} "[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis of the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims." Dresher v. Burt (1996),
{¶ 11} If the moving party has satisfied this initial burden, the nonmoving party has a reciprocal burden under Civ.R. 56(E) to set forth facts showing there is a genuine issue for trial. Id. at 293.
{¶ 12} In their first assignment of error, appellants challenge the trial court's determination that Allen cannot be held individually liable for appellants' damages. Appellants argue a genuine issue of material facts exists as to whether Allen's actions or omissions were manifestly outside the scope of his employment. We agree.
{¶ 13} Pursuant to R.C.
{¶ 14} "(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;
{¶ 15} "(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{¶ 16} "(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term `shall' in a provision pertaining to an employee.
{¶ 17} Whether an employee is acting within the scope of his employment is generally a question of fact for the jury. Obsborne v.Lyle (1992),
{¶ 18} Allen urges us to apply the test set forth in The Restatement of the Law 2d, Agency (1957), Section 228 as discussed by Justice Pfeiefer's dissent in City of Akron v. Holland Oil Co.,
{¶ 19} "`(a) it is of the kind he is employed to perform;
{¶ 20} "`(b) it occurs substantially within the authorized time and space limits; [and]
{¶ 21} "`(c) it is actuated, at least in part, by a purpose to serve the master.'" Id. at ¶ 12-15, (Pfeifer, J., dissenting.) Even were we to apply this test, a genuine issue of material fact exists as to whether Allen's actions or omissions arose from the scope of his employment.
{¶ 22} Appellants presented evidence that Allen's shift began at 3:00 p.m. and Rosalie suffered her injuries when appellant was preparing to leave his residence for work at approximately 2:30 p.m. Appellants also presented evidence that Allen had not radioed dispatch that he was on duty. Although Allen presented evidence he was leaving his house in response to a call to search for someone at the time, we believe this detail is insufficient for us to conclude, as a matter of law, Allen was acting within his scope of employment. Irrespective of whether Allen was or was not on duty at the *6 time of the injury, a genuine issue of material fact exists as to whether Allen's actions or omissions were manifestly outside the scope of his employment.
{¶ 23} Furthermore, after a review of the law pertaining to the facts of this case, we additionally hold R.C.
{¶ 24} Appellants' first assignment of error has merit.
{¶ 25} Appellants' second assignment of error is two-pronged. He reiterates the scope of employment argument and further seeks to negate the second prong of R.C.
{¶ 26} A person acts recklessly if he does an act or intentionally fails to do an act which it is his duty to do, knowing or having reason to know of facts that would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that necessary to constitute negligence. Thompson v. McNeill (1990),
{¶ 27} Viewing the evidence in the light most favorable to appellants, they failed to present sufficient evidence to create a genuine issue of material fact as to whether Allen acted recklessly. There is no evidence of record to establish Allen knew or had reason to know that allowing Mick to roam off his leash created an unreasonable risk of harm, let alone that such risk was substantially greater than that necessary to constitute negligence. Nothing in the record indicated that Mick was aggressive or prone to jumping on strangers. Therefore, there was no evidence to remove immunity pursuant to 2744.03(A)(6)(b). Consequently, summary judgment was appropriate. *8
{¶ 28} To the extent appellants' second assignment of error raises the same issues as their first assignment of error regarding whether Allen was acting within the scope of his employment, it has merit. Appellants' second assignment of error with respect to 2744.03(A)(6)(b) is without merit.
{¶ 29} In their third and final assignment of error, appellants argue the trial court erred in determining R.C. Chapter 2744., Ohio's Political Subdivision Tort Liability Act, precluded their claims as they pertain to the political subdivision. We disagree.
{¶ 30} Under the Act, R.C
{¶ 31} R.C. 2744 et seq., also divides functions performed by political subdivisions into two categories: governmental functions and proprietary functions. See, R.C.
{¶ 32} Under their final assignment of error, appellants first contend Allen's decision to allow Mick to run free, outside his home, and onto appellants' property was a proprietary function and thus immunity is lifted pursuant to R.C.
{¶ 33} R.C
{¶ 34} A proprietary function is one that promotes or preserves the public peace, health, safety, or welfare and involves activities customarily engaged by nongovernmental persons. R.C.
{¶ 35} Here, the issue is whether Allen's decision to let the dog roam free to relieve itself and enter appellants' property adequately meets the foregoing definition. If Allen's actions were proprietary, then R.C.
{¶ 36} We first point out that Allen's activities were obviously of the sort customarily engaged in by nongovernmental persons, i.e., the act of allowing a dog in one's care to roam freely outside to relieve itself. However, R.C.
{¶ 37} However, even assuming arguendo that the evidence is such that a material issue of fact exists regarding whether Allen's actions could be deemed proprietary in nature, we still maintain appellees could reassert immunity under R.C.
{¶ 38} We shall first examine appellees' position that immunity could be reasserted under R.C.
{¶ 39} In Perry, the appellant was the wife of a police officer. The officer's K-9 lived with the couple. Appellant let the dog outside to relieve itself. Upon returning inside the home, the dog retreated under the dining room table. When the appellant bent over to provide the dog with food and water, the dog bit the woman's face causing injuries. The appellant sued the city to recover for her injuries. Id. at *1-*3. This court held that the decision to board the dog at appellant's house was a discretionary decision on how to use resources pursuant to R.C.
{¶ 40} Here, the issue is not the decision to board the K-9 at Allen's home. The issue is Allen's decision to let the dog roam free to relieve itself and enter appellants' property.2 Thus, Perry is inapposite of the issue in this case.
{¶ 41} Furthermore, there is no evidence of record that Allen's decision or judgment concerned the "acquisition" or "use" of equipment, supplies, materials, personnel, facilities, or other resources. Appellees had already acquired Mick and there *11
is no evidence of record, nor do appellees present any argument to establish, how allowing a dog to relieve itself constitutes "use." Surely, appellees' decision on where to house Mick cannot insulate them from liability on any conceivable injury flowing, no matter how tangentially, from that decision. Thus, appellees' attempt to reinstate immunity under R.C.
{¶ 42} Notwithstanding the foregoing analysis, our independent review of the record and the law leads us to the conclusion that R.C.
{¶ 43} Under the circumstances, we hold the political subdivision is immune from liability because Allen was using his discretion with respect to establishing a policy or plan on how to manage the dog's relief habits. As Allen was the officer caring for and supervising Mick, he was charged with such responsibilities and, the record indicates, the manner in which he fulfilled them was well within his discretion by virtue of his position. We therefore hold the trial court did not err in granting summary judgment in appellees' favor. There is no genuine issue of material fact regarding appellees' liability for the injuries caused by Allen's alleged acts or omissions.
{¶ 44} Appellants next argue appellees are subject to liability under R.C.
{¶ 45} While there can be no dispute that appellees are Mick's owners, keepers, or harborers, nothing in R.C.
{¶ 46} Appellants' third assignment of error lacks merit.
{¶ 47} For the foregoing reasons, appellants' first assignment of error is well taken, appellants' second assignment of error is well-taken in part, and overruled in part, and appellants' third assignment of error is overruled. Therefore, the judgment of the Ashtabula County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded for proceedings consistent with this opinion.
Notes
WILLIAM M. O'NEILL, J., concurs in part, dissents in part with Concurring/Dissenting Opinion.
DIANE V. GRENDELL, J., concurs in part, dissents in part with Concurring/Dissenting Opinion.
Dissenting Opinion
{¶ 48} The element of recklessness on the part of Deputy Sheriff Allen permeates the analysis of the majority, but the majority refuses to recognize this K-9 *13 animal for what it is: a dog trained to attack, knock down, and restrain people it perceives to be wrongdoers. I conclude that a genuine issue of material fact was presented as to whether Deputy Sheriff Allen acted recklessly in allowing his dog to roam free. For that reason, I respectfully dissent.
{¶ 49} The majority states that there is "[n]othing in the record [to indicate] that Mick [the dog] was aggressive or prone to jumping on strangers."
{¶ 50} However, my review of the record reveals that Allen and Mick became a K-9 team some two months prior; that Mick was approximately thirteen months old at the time of the incident; that Mick had been trained to be aggressive; that Mick had been trained by someone else; that Mick was off his lead; that Allen had a lead in his hand; that Mick had received "off-lead" obedience training, where he is supposed to stay with the handler; that Mick did not stay will Allen while he was off his lead; that there was no barrier between Allen's property and the Hicks' property; and that Mick went behind a pine tree and out of sight of Allen's vision. This evidence was derived from Allen's deposition testimony.
{¶ 51} What if Deputy Sheriff Allen had committed this same conduct one-half hour later, after his shift had begun at 3:00 p.m.? Reasonable minds could differ on whether it was reckless to allow this dog to roam free without regard to the time of day or the duty status of the deputy.
{¶ 52} I also take issue with the majority's analysis insofar as it absolves the sheriff's office from civil liability because the act of allowing Mick to roam free constituted a "policy-making" or "planning" function by Deputy Sheriff Allen, in which he *14 could exercise his discretion as to when Mick was or was not to be on a leash. Again, the question remains, if Allen could not engage in this "policy-making" or "planning" function to allow Mick to roam free during duty hours, how then does it become acceptable "policy-making" or "planning" during off-duty hours?
{¶ 53} Further, I believe the majority's analysis of Allen's decision on when to leash the dog constitutes a tortured reading of the "policy-making" or "planning" defenses of R.C.
{¶ 54} "Routine decisions requiring little judgment or discretion are not subject to immunity pursuant to R.C.
{¶ 55} Therefore, I would reverse the judgment entry of the trial court not only on the basis adopted by the majority, but also because there is a genuine issue of material fact as to whether Deputy Sheriff Allen was reckless. Further, I would reverse the *15 judgment entry with respect to granting immunity to the sheriffs office for the reasons stated.
Dissenting Opinion
{¶ 56} I concur in Judge Rice's conclusion that "summary judgment was appropriate." Having reached that correct conclusion, however, Judge Rice inexplicably then rules that appellants' first assignment of error (the trial court erred in granting summary judgment) is well-taken and appellant's second assignment of error is well-taken in part. Such disposition is incongruous with the conclusion that "summary judgment was appropriate." While I concur in Judge Rice's disposition of the third assignment of error, all of the assignments of error are without merit. Therefore, I respectfully dissent with respect to the decision to reverse and remand the lower court's ruling.
{¶ 57} Under Ohio law, Deputy Allen is immune from civil liability unless he was acting "manifestly outside the scope of [his] employment" or "[c]ivil liability is expressly imposed upon the employee by a section of the Revised Code." R.C.
{¶ 58} Deputy Allen's actions were manifestly not outside the scope of his employment. As the trial court correctly pointed out, "Allen's care of the dog is in *16 furtherance of the County's decision to utilize the dog as a tool of law enforcement and to delegate responsibility for maintenance of the dog to the deputy to whom the dog is assigned." More significantly, Allen's uncontroverted testimony is that he was responding to a police call at the time of the incident involving Rosalie Hicks. Although Allen's shift was not scheduled to begin for a half an hour, he had been summoned by the sheriff's department to proceed directly to a particular area, with Mick, and conduct a person search.
{¶ 59} This is sufficient to establish that Allen was within the scope of his employment, or, in the words of the statute, not "manifestly outside the scope of [his] employment." There is no evidence that any action taken by Allen was outside the scope of his employment. There is no genuine issue of material fact on this issue.
{¶ 60} Deputy Allen's immunity is not abrogated by R.C.
{¶ 61} This court has previously held that R.C.
{¶ 62} Similarly, R.C.
{¶ 63} Therefore, the decision of the Ashtabula County Court of Common Pleas should be affirmed. *1