Rilley v. Brimfield Twp.Rilley v. Brimfield Twp.
Civil Appeal from the Court of Common Pleas, Case No. 2007 CV 0085.
Judgment: Affirmed.
Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, 35th Floor, 50 Public Square, Cleveland, OH 44113-2216, and Michael T. Callahan, Callahan, Greven, Riley & Sinn, L.L.C., 137 South Main Street, #300, Akron, OH 44308 (For Plaintiffs-Appellants).
Mel L. Lute, Jr., Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Defendants-Appellees).
MARY JANE TRAPP, P.J.
{¶1} Appellants, Scott Rilley, administrator of the estate of Sarah Positano, and her parents, Susan and James Positano, appeal the judgment of the Portage County Court of Common Pleas, which dismissed their wrongful death and survivorship claims and granted summary judgment in favor of appellees, Brimfield Township and Brimfield Chief of Police, David A. Blough.
{¶3} Substantive and Procedural Facts
{¶4} On that fatal night, Chief Blough received a call from dispatch at about 9:45 p.m. reporting that Mr. Trimble had just killed his girlfriend and her nine-year old son at their home. Chief Blough then received another dispatch that two people walking their dog in the woods near that residence were threatened by a man dressed in camouflage and carrying an assault rifle. Chief Blough called officers to the scene and contacted the Metro SWAT team commander and Fairlawn Sergeant, Scott Robertson, to assemble the Metro SWAT team. Chief Blough then headed directly to Mr. Trimble’s residence.
{¶5} While Metro SWAT was assembling, the officers who had already responded to the scene set up outer and inner perimeters around the location where Mr. Trimble was last sighted. They formed a skirmish line to narrow the perimeter and “squeeze” Mr. Trimble out of hiding. Unbeknownst to the officers, Mr. Trimble had already broken into a condominium and taken a hostage.
{¶6} At about 11:18 p.m., the hostage, Ms. Positano, called 911 reporting that a man had entered her apartment. She told the 911 operator that the man was holding a
{¶7} By 11:45 p.m., the Metro SWAT team had taken control of the scene and all other officers were retreating. All together there were over one hundred police officers on the scene at some point that night.
{¶8} Mr. Trimble allowed Ms. Positano to stay on the line with the operator, who transferred the call to Sergeant Rick Baron. During the call, Mr. Trimble asked to speak directly with the police and was connected to Sergeant Michael Korach, a Fairlawn police officer and hostage negotiator for Metro SWAT, via a three-way call to Sergeant Korach’s cell phone.
{¶9} During the call, Mr. Trimble reiterated that he was armed and that he would not hurt Ms. Positano as long as the police retreated. The call was disconnected, but Sergeant Korach was able to reestablish a connection within ten to fifteen minutes. During the second call, Mr. Trimble agreed that he would release Ms. Positano in two hours if he was “left alone.” Sergeant Korach asked to speak with Ms. Positano, but Mr. Trimble denied the request. The sergeant did not hear Ms. Positano and Mr. Trimble speaking in the background as he had during the first call.
{¶10} Meanwhile, Ms. Positano was still on the line with Sergeant Baron. He overheard her speaking with Mr. Trimble and relayed the agreement reached between
{¶11} At about 12:04 a.m., Sergeant Baron heard Ms. Positano scream and gasp for several seconds, and then the call was disconnected. The officers continuously called both Mr. Trimble and Ms. Positano for the remainder of the evening to no avail. No one on the line heard a gunshot or knew Ms. Positano had been fatally shot in the neck. The best they could assess at the time was that Ms. Positano suffered an asthma attack because she had been warning the operator and Sergeant Baron that one was imminent.
{¶12} Six minutes later, at 12:10 a.m., Mr. Trimble began shooting at two of the snipers outside. When Mr. Trimble began firing upon the officers, Sergeant Robertson requested, and Chief Blough issued, a “Delta Order,” which gave the team permission to shoot Mr. Trimble, if possible, while protecting the hostage and themselves. Three return shots were fired by two of the officers at approximately 12:30 a.m. and 12:37 a.m. Mr. Trimble retreated back into the house and continued to fire shots sporadically until almost 3:00 a.m.
{¶13} Mr. Trimble was finally apprehended around 7:30 a.m. after Metro SWAT burst through the door. The officers found Ms. Positano dead on the landing and Mr. Trimble barricaded in the bedroom upstairs.
{¶14} Civil Suit for Claims of Wrongful Death and Survivorship
{¶15} Mr. Rilley and the Positanos filed suit alleging state and federal claims of civil rights violations, inadequate training and supervision, including negligent hiring and retention of the police officers involved, civil conspiracy, breach of fiduciary duty,
{¶16} Mrs. Trimble, Mr. Trimble’s mother and a named defendant, filed a motion for summary judgment, which was subsequently denied.
{¶17} Brimfield Township and Chief Blough also filed a motion for summary judgment, which was granted, triggering the instant appeal.
{¶18} Trial Court Excludes Certain Evidentiary Materials Offered in Opposition to Motion for Summary Judgment
{¶19} Attached to appellees’ motion for summary judgment were: depositions of Chief Blough, Sergeant Korach, Sergeant Robertson, and Officer Richard Soika, a Kent police officer and member of Metro SWAT; affidavits from Sergeant Korach, Sergeant Baron, and Dr. Anthony Lazcano, who reviewed Ms. Positano’s autopsy and drug screen results; as well as a transcript of Ms. Positano’s call to 911.
{¶20} Mr. Rilley and the Positanos submitted affidavits from Mr. Roger F. Collins, an investigator working privately and for the state of Ohio, and Attorney Richard J. Vickers, a public defender who specializes in death penalty cases. Also attached was a portion of the Westshore Enforcement Bureau SWAT Team Leadership Reference Manual, a “Sanity Evaluation of Mr. Trimble” by Dr. Robert L. Smith, investigator notes of Detective Christopher, and notes from Officer Ken Ciesla.
{¶21} Appellees filed a motion to strike the Rilley/Positano evidentiary materials on the basis of a failure to comply with the requirements of
{¶22} The trial court agreed, finding that Mr. Collins was not established as an expert in audio forensics, ballistics, or firearms; and that his affidavit contained largely
{¶23} The court did, however, consider the depositions submitted by appellees as no objections were raised as to either their form or substance, despite the fact that some of the depositions were not certified or signed by the witness who was deposed.
{¶24} Trial Court Considers the Merits of the Motion
{¶25} Specifically, the court found Brimfield Township was immune as a political subdivision from appellants’ claims. There was no evidence that the Brimfield Police and assisting law enforcement officers acted outside the scope of their official duties and, therefore, an exception to governmental immunity applied. As to Chief Blough personally, the trial court found that appellants had failed to establish that Chief Blough was acting outside of his scope of employment or that he acted in a malicious, wanton or reckless manner.
{¶26} As to appellants’ substantive arguments, the court found that Chief Blough’s “Delta Order” was issued at the urging of Metro SWAT Commander Robertson when the officers came under Mr. Trimble’s direct fire. The order authorizing them to return fire only when necessary and appropriate was issued to protect the officers. Further, the trial court found appellants’ theory, that a rogue sniper had fired an unauthorized shot, which prompted Mr. Trimble to shoot Ms. Positano, was
{¶27} Thus, with no genuine issues of material fact remaining for determination, summary judgment was awarded to appellees, and it is from this judgment that appellants raise the following assignment of error:
{¶28} “The trial judge erred, as a matter of law, to plaintiff-appellants’ substantial detriment by granting summary judgment upon all claims against defendant-appellees, Brimfield Township and Chief David Blough.”
{¶29} Summary Judgment Standard of Review
{¶30} “Pursuant to
{¶31} “Accordingly, ‘[s]ummary judgment may not be granted until the moving party sufficiently demonstrates the absence of a genuine issue of material fact. The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.’ Brunstetter v. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, ¶12, citing Dresher at 292.
{¶32} “Since summary judgment denies the party his or her ‘day in court’ it is not be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary judgment standards has placed burdens on both the moving and nonmoving party. In Dresher v. Burt, the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under
{¶33} “The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, *** is too broad and fails to account for the burden
{¶34} “The Supreme Court in Dresher went on to hold that when neither the moving nor nonmoving party provides evidentiary materials demonstrating that there are no material facts in dispute, the moving party is not entitled to judgment as a matter of law as the moving party bears the initial responsibility of informing the trial court of the basis for the motion, ‘and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.’ Id. at 276.” Ziccarelli at ¶40-42.
{¶35} Claims against Brimfield Township
{¶36} We first address appellants’ claims as to Brimfield Township. Specifically, Mr. Rilley and the Positanos argue that there was sufficient evidence that Chief Blough, acting in his official capacity, failed to properly oversee and control Metro SWAT. Thus, they contend that Brimfield Township is liable for Chief Blough’s reckless and wanton conduct that occurred while he was acting in the scope of his employment. Appellants contend Officer Blough failed to properly oversee Metro SWAT in his issuance of a “Delta Order” and in his communications with Metro SWAT prior to Mr. Trimble shooting Ms. Positano.
{¶38} The general grant of immunity found in
{¶39} Because none of the exceptions in
{¶40} Thus, the trial court properly awarded summary judgment to Brimfield Township.
{¶41} Claims against Chief Blough
{¶42} The claims against Chief Blough, individually and personally, also fail. Chief Blough is an employee of Brimfield Township.
{¶43} The Test for Willful and Wanton Misconduct
{¶44} “A two-part test has been applied for a determination of ‘wanton’ misconduct. ‘[F]irst, there is a failure to exercise any care whatsoever by those who owe a duty of care to appellant[s]. Secondly, this failure occurs under circumstances in which there is a great probability that harm will result from the lack of care. The first
{¶45} “As to ‘willful misconduct,’ ‘it implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposely doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.’” Id. at ¶41, quoting Tighe at 527.
{¶46} “When determining whether a political subdivision employee’s conduct was willful or wanton so as to remove the immunity afforded under
{¶47} “The term ‘willful and wanton misconduct’ connotes behavior demonstrating a deliberate or reckless disregard for the safety of others, but because the line between such misconduct and ordinary negligence is sometimes a fine one
{¶48} Appellants failed to present any evidence or inferences from the evidence that created an issue of material fact as to whether Chief Blough acted in a wanton or reckless manner. As evidence that Chief Blough acted with such reckless disregard, appellants argue that Chief Blough did not communicate to Metro SWAT that a two-hour “cooling-off” period had been negotiated, and because of this, Metro SWAT continued to approach the area, prompting Mr. Trimble to shoot Ms. Positano. Appellants further contend that Chief Blough then hastily issued the Delta Order without discovering what happened to Ms. Positano.
{¶49} First, Metro SWAT Commander Sergeant Scott Robertson testified in his deposition that Sergeant Korach relayed the negotiated two-hour period and accordingly, the squad “stood” for 10-14 minutes. Sergeant Robertson was in direct contact with Sergeant Korach via the Metro SWAT radios. Due to the state of the technology at the time, Metro SWAT was capable of radio communication only with the SWAT team. Sergeant Robertson communicated with the 911 operator and the Brimfield Police by cell phone and the command center vehicle.
{¶51} Third, Sergeant Robertson requested, and Chief Blough issued, the Delta Order at approximately 12:10 a.m., when the offices were under Mr. Trimble’s direct fire. This was done, in the words of several officers, for the safety of both the officers and the hostage.
{¶52} This hostage standoff came to a tragic and devastating ending which necessarily and understandingly prompts questions and second guessing based upon hindsight; however, there is simply no evidence in this record that Chief Blough acted with a wanton and reckless disregard, or even negligently, in trying to save Ms. Positano’s life.
{¶53} In the absence of any evidence that Chief Blough acted “with malicious purpose, in bad faith, or in a wanton or reckless manner,” the trial court properly awarded summary judgment to Chief Blough.
{¶54} Evidence Considered Upon Summary Judgment
{¶55} Lastly, appellants argue that the trial court erred in granting appellees’ motion to strike the affidavits of Mr. Collins and Attorney Vickers, which were attached to their brief in opposition to motion for summary judgment. The trial court found that these affidavits were based on hearsay and offered conclusory opinions unsupported by
{¶56} “A trial court’s decision to grant or deny a motion to strike is within its sound discretion and will not be overturned on appeal unless the trial court abuses its discretion.” Douglass v. Salem Community Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, ¶20, citing Early v. Toledo Blade (1998), 130 Ohio App.3d 302, 318. “Similarly, the decision regarding the admission of testimony of an expert witness lies with the sound discretion of the trial court and will not be disturbed unless the trial court abuses that discretion.” Id., citing Scott v. Yates (1994), 71 Ohio St.3d 219, 221. An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary (8 Ed.Rev.2004) 11. We note that in this case, the decision to admit evidence is purely a legal one as it involves solely a question of law, thus necessarily the standard of review is de novo. Under either standard, however, we believe the trial court did not abuse its discretion, and, in addition, used the proper legal analysis to strike the affidavits.
{¶57} “Pursuant to
{¶58} “[I]n order to comply with
{¶59} “When deciding whether an expert is qualified to render the opinions found in an affidavit in support of summary judgment, a court may look to other evidentiary matter, including depositions of the affiant not previously filed in the court.” Id. at ¶31, citing Cleveland Clinic Found. v. Commerce Group Benefits, Inc. (Mar. 28, 2002), 8th Dist. No. 79907, 2002-Ohio-1414; Williams v. 312 Walnut Ltd. Partnership (Dec. 13, 1996), 1st Dist. No. 960368, 1996 Ohio App. LEXIS 5887. “Ohio’s standards regarding the admissibility of expert opinions are relatively lenient as to a determination of who is an expert but relatively strict in governing the admissibility of the expert testimony.” Id., citing State v. Rangel (2000), 140 Ohio App.3d 291, 295.
{¶60} “To qualify as an expert, the witness must have some ‘specialized knowledge, skill, experience, training or education regarding the subject matter of the testimony.’
{¶61} Furthermore, “
{¶62} In the case of Mr. Collins, no evidence was offered as to his qualifications in audio forensics, ballistics, or firearms, areas in which he sought to offer his expert opinion. Further, none of the documents upon which Mr. Collins based his formulation of the events of that night are attached to the affidavit or authenticated by affidavit or in the record.
{¶64} Similarly, Attorney Vickers was never qualified as an expert in ballistics and firearms. His credentials established that he has given many lectures on the topic as it relates to his experience as a defense counsel in death penalty cases, but did not establish that he has any direct educational or professional background in the areas in which he sought to offer his opinion. Further, as the trial court noted, Mr. Vickers listed various documents that he reviewed in preparing the findings and conclusions set out in his affidavit, including testimony from a previous criminal trial, an exhibit and laboratory report from a previous criminal case, an autopsy report, a firearm instructional manual, an affidavit of Mr. Trimble, and an unauthenticated transcript of an emergency 911 call from the night of January 21, 2005. Not one of the documents was attached to the answer brief in opposition to the motion for summary judgment or otherwise offered as supporting evidentiary materials, or certified to be authentic or true and accurate copies.
{¶65} Thus, Attorney Vickers’ affidavit did not incorporate by reference the evidence he relied on in forming his expert opinion as required by
{¶67} Thus, upon the appellees’ motion to strike, the trial court properly excluded these affidavits on summary judgment as neither complied with the requirements of
{¶68} For these reasons, the judgment of the Portage County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.