MacCabee v. MollicaMacCabee v. Mollica
APPEARANCES:
Richard W. Ross and Nicole M. Donovsky, Columbus, Ohio, for Appellants.1
Samuel N. Lillard, Columbus, Ohio, for Appellees.
McFarland, P.J.:
{¶1} Appellant, Anthony C. Mollica, appeals the trial court‘s decision that denied his summary judgment motion on the basis of statutory immunity under
I
FACTS
{¶2} On January 25, 2008, Daniel and Melissa Maccabee and their minor child, Abram Maccabee (appellees), filed a complaint against appellant and the Nelsonville-York City School Board2 based upon an incident that occurred on January 25, 2007. They alleged that on January
{¶3} Appellant subsequently filed a summary judgment motion that asserted he is statutorily immune from liability under
{¶4} Appellant also filed Abram‘s deposition. Abram explained the January 25, 2007 incident as follows:
“* * * [Appellant] grabbed me, was talking mean to me and threw me out into the hallway, and said that the—and said that there—because somebody went and told that I punched somebody in the stomach and I didn‘t, and he thought I was lying. He grabbed me and he said in a really mean voice, I won‘t tolerate fibbing. He threw me into the hallway. He told me, I hope those boys on the playground find you and beat you up and if I see it, I won‘t do anything about it.”
Abram stated that appellant pushed him against the wall, which caused him to hurt his back. Abram denied hitting another student and stated that he had never hit another student at school.
“Abram‘s deposition testimony, construed most strongly in his favor, shows that Mollica, an adult male teacher, without any apparent need for an actual and immediate show of physical force or intervention, grabbed a third-grade boy‘s shirt at or near his neck, pulled him by the shirt into a hallway, pushed him into the wall with a hand to the stomach causing his back to hit the wall ‘really hard,’ and yelled at the boy that he hoped other students would beat him up on the playground and that, if they did, he, Mollica, would do nothing about [it]. Even one incident of conduct involving a teacher‘s (or public employee‘s) intentionally grabbing a small student in an ‘unnecessarily forceful’ way may be construed as malicious, in bad faith, or wanton or reckless within the meaning of
R.C. 2744.03(A)(6) . See Woods v. Miamisburg City Schools (S.D.Ohio, 2003), 254 F.Supp.2d 868.”
II
ASSIGNMENTS OF ERROR
{¶6} Appellant appeals the trial court‘s judgment and raises two assignments of error:
First Assignment of Error:
“The Trial Court Erred by concluding that the existence of a genuine issue of material fact precluded the Trial Court from granting Appellant Anthony C. Mollica‘s Motion for Summary Judgment.”
Second Assignment of Error:
“The Trial Court erred by failing to determine that Anthony C. Mollica‘s conduct did not rise to the level of malice, bad faith and wanton or reckless conduct required to overcome statutory immunity pursuant to
R.C. 2744.03(A)(6)(b) .”
III
LEGAL ANALYSIS
{¶7} Because appellant‘s two assignments of error challenge the trial court‘s summary judgment decision and, thus, involve the same standard of review, we consider them together.
{¶8} In his first assignment of error, appellant argues that the trial court wrongly determined that genuine issues of material fact remained. He contends that whether he is entitled to statutory immunity is a question of law for the court to decide and that it was therefore inappropriate for the court to conclude that genuine issues of material fact remained.
{¶9} In his second assignment of error, appellant contends that the trial court erred by failing to conclude, as a matter of law, that he did not act maliciously, in bad faith, wantonly, or recklessly.
{¶11}
* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.
{¶13} In determining whether summary judgment is appropriate, the “trial court must conscientiously examine all the evidence before it.” Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359, 604 N.E.2d 138. ”
{¶14} Because summary judgment is a procedural device that terminates litigation, courts should award it cautiously and must resolve all doubts in favor of the non-moving party. Id. at 359. Furthermore, a trial court may not grant a summary judgment motion on the sole basis that the nonmoving party failed to respond to the motion. See Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 47, 517 N.E.2d 904.
{¶15} In the case at bar, appellant asserts that the trial court should have entered summary judgment in his favor because the evidence before the court shows that pursuant to
{¶16}
{¶17} As a general matter, whether an employee is entitled to
{¶18} As the above case law makes clear, whether a political subdivision employee is entitled to immunity under
{¶19} Moreover, to the extent appellant argues that the trial court was required to grant him summary judgment due to appellees’ failure to timely respond, we observe that the case law does not support his position. Instead,
{¶20} Appellant further asserts that the trial court should have determined that the facts in the case at bar fail to demonstrate, as a matter of
{¶21} The term “malice” means the willful and intentional desire to harm another, usually seriously, through conduct which is unlawful or unjustified. Hicks v. Leffler (1997), 119 Ohio App.3d 424, 428-429, 695 N.E.2d 777. “Bad faith” implies sinister motive that has “no reasonable justification.” Id. at 429. “Bad faith” embraces more than bad judgment or negligence. Parker v. Dayton Metro. Hous. Auth. (May 31, 1996), Montgomery App. No. 15556, 1996 WL 339935 . It imports 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. It also embraces actual intent to mislead or deceive another.” Id., citing Ohio Jurisprudence 3d, Words and Phrases, 1995 Supplement, see, also, Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 454, 602 N.E.2d 363.
{¶22} Wanton misconduct has been defined as the failure to exercise any care whatsoever. See Fabrey, at 356, citing Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. The Ohio Supreme Court has held that “‘mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the
{¶23} “Reckless” refers to conduct that causes an unreasonable risk of harm and is “‘substantially greater than that which is necessary to make [an actor‘s] conduct negligent.‘” Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705, quoting 2 Restatement of the Law 2d, Torts (1965) 587, Section 500. Likewise, an individual acts recklessly when he or she, bound by a duty, does an act or intentionally fails to do an act, knowing, or having reason to know of, facts that would lead a reasonable person to realize not only that there is an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary for negligence. See id.; see, also, Fabrey, at 356.
{¶24} In Burkhart v. Dayton Bd. of Edn., Montgomery App. No. 23739, 2010-Ohio-2496, the court determined that reasonable minds could disagree as to whether a bus driver‘s conduct toward a twelve-year old student constituted reckless or wanton conduct. In that case, the student testified that the bus driver “was angry,” “‘grabbed’ her arm, pushed her
{¶25} We find the facts in Burkhart substantially similar to those in the case at bar. In the case at bar, Abram, a third-grade student, stated that his teacher grabbed him by the shirt collar, dragged him into the hallway, yelled at him, and pushed him into the wall, which caused injury to his back. In both Burkhart and the instant case, the plaintiffs’ versions of the facts show that a person in a position of authority over a minor child verbally assaulted the child and used some degree of force with the child that resulted in a physical injury. We agree with the Burkhart court that it is for a jury to decide whether this conduct constitutes reckless or wanton behavior. In the present case, if Abram‘s testimony is believed, the evidence shows that appellant dragged the child by his shirt into the hallway, yelled in his face, and slammed his back into the wall. We cannot agree with appellant that as a matter of law, this conduct fails to demonstrate, at the least, a perverse
{¶26} Accordingly, based upon the foregoing reasons, we overrule appellant‘s two assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
Harsha, J., dissenting:
{¶27} I dissent because I find Conley v. Shearer, 64 Ohio St.3d 284, 1992-Ohio-133, at 292, controlling. There, the Supreme Court of Ohio stated:
* * *
The question of whether Shearer is entitled to immunity as a governmental employee is a question of law for which there is no right to trial. A jury trial is necessary only when the case requires resolution of factual issues which are triable to a jury in comparable civil actions. See Erie Ins. Group v. Fisher (1984), 15 Ohio St.3d 380, 381-382, 15 OBR 497, 498-499, 474 N.E.2d 320, 322. See, also,
R.C. 2311.04 andCiv.R. 56(C) . “Whether immunity may be invoked is a purely legal
issue, properly determined by the court prior to trial, Donta v. Hooper (C.A.6, 1985), 774 F.2d 716, 719, certiorari denied (1987), 483 U.S. 1019 [107 S.Ct. 3261, 97 L.Ed.2d 760], and preferably on a motion for summary judgment.” Roe v. Hamilton Cty. Dept. of Human Serv. (1988), 53 Ohio App.3d 120, 126, 560 N.E.2d 238, 243.
{¶28} Thus, whether immunity may be invoked by a defendant is purely a legal issue. The necessity of a factual analysis to determine whether Mollica acted outside the scope of his employment (or with maliciousness, bad faith or wantonly) does not transform the question of law into a matter that cannot be addressed in summary judgment. Id. However, “[S]imply because resolution of a question of law involves a consideration of the evidence does not mean that the question of law is converted into a question of fact or that a factual issue is raised.” Ruta v. Breckenbridge-Remy Co. (1982), 69 Ohio St.2d 66, 68, 430 N.E.2d 935 (considering the standard of review for the denial of a motion for a directed verdict). The Supreme Court has noted that “a review of the evidence is more often that not vital to the resolution of a question of law. But the fact that a question of law involves a consideration of the facts or the evidence does not turn it into a question of fact.” O‘Day v. Webb (1972), 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (in the context of a motion for a directed verdict).
{¶30} Moreover, In Theobold v. Univ. of Cincinnati, the Supreme Court cites Hopper v. Univ. of Cincinnati (Aug. 3, 2000), Franklin App. No. 99AP-787, 2000 WL 1059672, when stating that “whether an individual acted manifestly *544 outside the scope of employment is a question of fact.” The court in Hopper cites two cases, without explanation, to support this statement. The first case, Lowry v. Ohio State Highway Patrol (Feb. 27, 1997), Franklin App. No. 96API07-835, makes the following comment:
While the issue of immunity is a question of law, Conley, the trial court is required to consider specific facts of the case in order to resolve the issue. When an issue turns upon the credibility of a witness because his testimony must be believed to resolve the issue and the surrounding circumstances place the credibility of the witness in question, the matter should be resolved by the trier of fact.
There is no explanation of how the trier of fact‘s responsibilities on factual issues interacts with the trial court‘s obligation to answer the legal question of whether statutory immunity is available, or of how a factual dispute
{¶31} The second case in Hopper is Tschantz v. Ferguson (1989), 49 Ohio App.3d 9, 550 N.E.2d 544. There, the court states that “a determination of whether an employee is acting within the scope of his employment is a question of fact for the jury.” Id. at 13. To support this statement, the court cites to Goldberg v. Jordan (1935), 130 Ohio St. 1, 3 O.O. 64, 196 N.E. 775. Goldberg, however, does not involve statutory immunity. Instead, Goldberg involves the liability of a business owner for the actions of an employee.
{¶32} Thus, I dissent.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellees recover of Appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Exceptions.
Kline, J.: Concurs in Judgment and Opinion.
Harsha, J.: Dissents with Dissenting Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.