Hunt v. Alderman
| Decision Date | 12 November 2015 |
| Docket Number | No. 27416.,27416. |
| Citation | 50 N.E.3d 253 |
| Parties | Miguel HUNT, et al., Appellees, v. Robert E. ALDERMAN, Jr., Appellant. |
| Court | Ohio Court of Appeals |
Sherri Bevan Walsh, Prosecuting Attorney, and Marvin D. Evans, Assistant Prosecuting Attorney, for Appellant.
David P. Bertsch, Attorney at Law, for Appellee.
, Judge.
{¶ 1} Defendant–Appellant Robert E. Alderman, Jr. appeals from the entry of the Summit County Court of Common Pleas denying his motion for summary judgment. We reverse and remand to the trial court for further clarification.
{¶ 2} On October 21, 2011, Mr. Alderman and Plaintiff–Appellee Miguel Hunt, both deputy sheriffs with the Summit County Sheriff's Office and members of the SWAT team, were part of a SWAT in-service training session. Both men participated in the training at the direction of their employer. The session was a Taser instructor course. The course involved classroom instruction followed by training scenarios. Some of the scenarios involved a simulated entry into a room by members of the SWAT team. In the scenario at issue, Mr. Alderman was part of the entry team and his role was that of lethal cover for his team. He had with him an unloaded submachine gun. Mr. Hunt played the role of a suspect. He was instructed to be verbally uncooperative. Mr. Hunt was dressed in a lightly padded Taser suit, which covered him from head to toe and protected him by preventing the Taser barbs from contacting his skin. However, the Taser suit was not designed to protect against physical force. The Tasers used in the training did not deliver an electrical shock and the barbs in the training Tasers were shorter than those used by safety forces during regular duty. Deputy Richard Wright was involved in the scenario; he was the team member with a Taser.
{¶ 3} The scenario was supposed to involve Mr. Hunt being verbally uncooperative while walking towards Mr. Wright. If Mr. Hunt continued to be uncooperative, Mr. Wright would then deploy the Taser. The scenario, however did not go as anticipated. Mr. Alderman believed it was his role to prevent Mr. Hunt from moving towards, and harming, other members of the team. Thus, once Mr. Hunt began moving towards Mr. Wright, Mr. Alderman struck Mr. Hunt in the head with the end of his weapon.1 Mr. Hunt fell to the ground. Mr. Alderman, who appeared very distraught upon seeing Mr. Hunt fall, came over to Mr. Hunt, apologized, and remarked that he thought Mr. Hunt was wearing a helmet.
{¶ 4} Mr. Hunt received medical treatment and ultimately was diagnosed with a concussion. He received workers' compensation for his injuries. The incident prompted the Summit County Sheriff's Office to conduct an internal investigation. The report that issued from that investigation found Mr. Alderman negligent in his use of force.
{¶ 5} In September 2012, Mr. Hunt and his wife filed a two-count complaint for assault and battery and loss of consortium against Mr. Alderman. Mr. Alderman filed a motion for summary judgment asserting that he was entitled to co-worker immunity as provided by R.C. 4123.741
. Additionally, he asserted that the intentional tort exception to co-worker immunity was not applicable in light of the facts. Mr. Hunt filed a brief in opposition and Mr. Alderman filed a reply. Mr. Hunt also filed a motion to strike portions of Mr. Alderman's affidavit, the Summit County Sheriff's Office's report, and the finding made based upon that report. Mr. Alderman opposed the motion.
{¶ 6} The trial court denied Mr. Alderman's motion for summary judgment without expressly ruling on Mr. Hunt's motion to strike. The trial court summarized the motion for summary judgment as follows: “[Mr. Alderman] argues that he is entitled to co-worker immunity pursuant to R.C. 4123.741
and that the intentional tort exception to co-worker immunity is not applicable.” The trial court concluded that, “[w]ith regard to the issue of whether the intentional tort exception is applicable, the Court finds that genuine issues of material fact remain to be litigated.”
{¶ 7} Mr. Alderman has appealed, raising three assignments of error for our review.
.
THE TRIAL COURT ERRED BY IMPLICITLY FINDING, WITHOUT EXPLANATION THAT [MR.] HUNT HAD PUT FORTH SUFFICIENT EVIDENCE TO OVERCOME THE EVIDENCE SUPPORTING [MR.] ALDERMAN'S MOTION FOR SUMMARY JUDGMENT.
THE TRIAL COURT ERRED BY NOT GRANTING IMMUNITY TO [MR.] ALDERMAN UNDER R.C. 4123.741.
{¶ 8} Mr. Alderman argues in his first assignment of error that the trial court erred in concluding that he failed to meet his initial burden under R.C. 4123.741
. He asserts in his second assignment of error that the trial court erred in implicitly finding that Mr. Hunt met his reciprocal burden. Finally, Mr. Alderman maintains in his third assignment of error that the trial court erred in not granting him the benefit of immunity pursuant to R.C. 4123.741. As Mr. Alderman's assignments of error are related, they will be addressed together.
{¶ 9} “The denial of a motion for summary judgment is not ordinarily a final, appealable order.” Buck v. Reminderville, 9th Dist. Summit No. 27002, 2014-Ohio-1389, 2014 WL 1350734, ¶ 5
. “However, Revised Code Section 2744.02(C) provides that ‘[a]n order that denies * * * an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.’ ” (Emphasis omitted.) Buck at ¶ 5, quoting R.C. 2744.02(C). “The Ohio Supreme Court has recognized that this section applies to render the denial of immunity under any state or federal law a final, appealable order.” Buck at ¶ 5, citing Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 15. Given that the entry of the trial court denied Mr. Alderman, an employee of the Summit County Sheriff's Office, the benefit of the immunity provided by R.C. 4123.741, we conclude the trial court's entry is a final, appealable order. See
{¶ 10} In reviewing a trial court's ruling on a motion for summary judgment, this Court applies the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe–Woodward Co., 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983)
. Pursuant to Civ.R. 56(C), summary judgment is proper if:
(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 for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977)
. The moving party bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292–93, 662 N.E.2d 264 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293, 662 N.E.2d 264 ; Civ.R. 56(E).
{¶ 11} Mr. Alderman argues that R.C. 4123.741
provides him with immunity for the incident on October 21, 2011, and that the intentional tort exception to that immunity does not apply.
, shall be liable to respond in damages at common law or by statute for any injury or occupational disease, received or contracted by any other employee of such employer in the course of and arising out of the latter employee's employment, or for any death resulting from such injury or occupational disease, on the condition that such injury, occupational disease, or death is found to be compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code.
{¶ 13} Mr. Hunt only appears to assert that the immunity conferred by R.C. 4123.741
does not apply to Mr. Alderman because the intentional tort exception applies. Mr. Alderman denies that the exception applies, arguing that there was no evidence that he intended to injure Mr. Hunt. The parties do not dispute that Mr. Hunt and Mr. Alderman were employees of the Summit County Sheriff's Office and were at the training session at the behest of their employer. Moreover, there is no dispute that Mr. Hunt received workers' compensation payments for his injuries.
{¶ 14} The Supreme Court has stated that “[c]ommon-law damages are clearly unavailable under R.C. 4123.741
for injuries negligently inflicted by a co-employee in the course of employment.” Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 100, 472 N.E.2d 1046 (1984), superseded on other grounds by statute as stated in Houdek v. ThyssenKrupp Materials, N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253. However, the Supreme Court of Ohio has not specifically held that an intentional tort exception exists in the context of fellow employee suits and R.C. 4123.741. See
State ex rel. Yeaples v. Gall, 141 Ohio St.3d 234, 2014-Ohio-4724, 23 N.E.3d 1077, ¶ 18 (). Nonetheless, in light of other precedent and dicta, it is reasonable to conclude such an exception does exist. In discussing R.C. 4123.74, the statute addressing employer immunity, the...
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