Jerry Strickland v. Tower City Management Corp.

• Decision Date: 24 December 1997
• Docket Number: 97-LW-5310,71839
• Parties: JERRY STRICKLAND, ET AL., Plaintiffs-Appellants v. TOWER CITY MANAGEMENT CORP., ET AL., Defendants-Appellees CASE
• Court: Ohio Court of Appeals

JERRY STRICKLAND, ET AL Plaintiffs-Appellants v. TOWER CITY MANAGEMENT CORP., ET AL Defendants-Appellees

No. 71839.

97-LW-5310 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 24, 1997

Civil appeal from Common Pleas Court, Case No. 288152.

For plaintiffs-appellants: Martha V. Kim, 1265 W. Sixth Street Suite 400, Cleveland, Ohio 44113.

For defendants-appellees: John A. Albers, James L. McCrystal, Jr., Glenn D. Southworth, WESTON, HARD, FALLON, PAISLEY & HOWLEY, 2500 Terminal Tower, Cleveland, Ohio 44113-2241; David A. Bell, Laura F. Kenney, David C. Tryon, PORTER, WRIGHT, MORRIS & ARTHUR, 1700 Huntington Building, 925 Euclid Avenue, Cleveland, Ohio 44115.

For City of Cleveland: Brent Silverman, Assistant Director of law, City Hall - Room 106, 601 Lakeside Avenue, Cleveland, Ohio 44114.

OPINION

NAHRA J.

Appellants, Jerry Strickland, Devona Strickland, Selena Strickland, and Willie Strickland appeal the trial court's grant of summary judgment thereby denying their claims against appellees, Forest City Management, Tower City Properties, Robert Bonness, Albert Reese, Greg Ciurlik, Doug Melton, Paul Baeppler, Prioleau Green, Oliver Hill and James Mangan. Summary judgment was granted against appellants' claims of assault and battery, false imprisonment, false arrest, illegal search, police harassment and abuse, negligent infliction of emotional distress, defamation and discrimination under Title VII and analogous state laws. We find that there are no genuine issues of material fact regarding any of appellants' claims, thus, summary judgment is affirmed.

On October 10, 1994, appellants and Devlin Nolan traveled to downtown Cleveland, Ohio to go shopping at Tower City Mall. Between 12:15 and 12:30 p.m., appellants and Nolan were on The Avenue, at Tower City, in the vicinity of the Body Shop and Golland shoes. On that same day one of the appellees, Officer Jim Mangan was assigned to truancy detail on The Avenue. This duty requires him to enforce section 605.41(a) of the Cleveland Municipal code which provides that:

No child between the ages of six and seventeen, inclusive, other than a child that has been suspended or expelled from school, shall be at any place within the City except in attendance at school between the hours of 10:00 a.m. and 2:30 p.m. during any school day, unless the child has written proof from school authorities excusing him or her from attending school at that particular time, or unless the child is accompanied by a parent or legal guardian, or a responsible adult selected by the parent or legal guardian to supervise the child.

(Hereinafter, the "daylight curfew law.")

While patrolling The Avenue, Officer Mangan observed appellants and Nolan loitering. He suspected a violation of the daylight curfew law, and investigated. He approached appellants and inquired as to their ages and asked for identification. Jerry and Devona produced identification; however, the others, who were minors, did not.

Mangan continued to pursue the identity and ages of the three minors. Each time Mangan attempted to address the minors, Jerry Strickland attempted to intervene by shouting and physically approaching Mangan. Eventually, despite the efforts of Jerry, Officer Mangan determined that the others were minors. During this inquiry, Officer Mangan tried to explain the daylight curfew law in Cleveland, to the group, and radioed for backup in case trouble arose. Five off-duty police officers; appellees, Officer Prioleau Green, Sgt. Albert Reese, Jr., Det. Doug Melton, Officer Paul Baeppler and Officer Robert Bonness and two private security guards, appellees, Oliver Hill and Greg Ciurlik, responded. All of the officers, including Mangan, and both security guards were in the employ of appellee, Forest City Enterprises. Once Mangan determined that these children were underage and from out of town, he inquired as to why they were not in school. Devona informed him that it was a holiday, Columbus day. Jerry told him that they were shopping in Cleveland with their parents' permission, and that he and Devona were the appointed guardians of their brother, sister and Nolan.

After backup had arrived, Officer Mangan escorted the group to the security offices, room 502, so that he could call their parents and their respective schools. Appellants followed Mangan and the other seven officers to the offices and were placed in a holding room. There, Mangan entered the holding room and asked the three minors, Selena, Willie and Devlin for their names, addresses, parents' names and phone numbers, and school names and phone numbers. Mangan called to verify the minors' stories and learned they were absent from school and in Cleveland with their parents' permission and had Jerry and Devona as their appointed guardians.

While Officer Mangan was on the phone, Officer Green became concerned with Jerry Strickland's behavior and decided to perform a "pat-down" frisk to ensure the safety of everyone present. Green asked Jerry to step outside of the holding room and initiated this frisk. Jerry resisted Officer Green's efforts and kept turning around and confronting Green face to face. Officer Bonness decided that Green was in need of assistance, and determined that in order to subdue Jerry, into a non threatening "pat-down," slight force would be necessary. In the process of subduing Jerry, Officers Bonness and Green slammed appellant against the wall and Officer Bonness proceeded to hold Jerry's forefinger and pinky in his hand and apply slight pressure. Officer Green found nothing threatening on Jerry's person and returned him to the holding cell. At no time during this search did Jerry indicate that he was being injured by either Officers Green or Bonness.

After Officer Mangas received the appropriate information, and had spoken to the children's parents, he returned to the holding room to find the appellants acting in a loud and boisterous manner. Because of these actions, Officer Mangan determined that it would be in the best interest of the children, and The Avenue, if the appellants and Nolan were escorted out of the mall. After being escorted out, and upon his departure, Jerry Strickland extended his middle finger in a gesture to Mangan.

Mangan subsequently consulted with the City prosecutor, who recommended filing criminal charges against Jerry and Devona Strickland for disorderly conduct. Jerry and Devona disposed of these charges by pleading no contest.

Appellants, by their own estimate, were in Tower City for a maximum of forty-five minutes. Of that time, appellants spent thirty minutes in security room 502.

I.

Appellants assign three errors for our review. Appellants' first and second assignments of error address the same issue and will be treated together. They state:

I.

SUMMARY JUDGMENT MAY BE GRANTED ONLY WHEN THERE ARE NO ISSUES OF LAW OR FACT IN DISPUTE.

II.

IN THE INSTANT CASE, THERE WERE NUMEROUS ISSUES IN DISPUTE AS A COMPARISON OF AFFIDAVITS OF PLAINTIFFS WITH THE AFFIDAVITS OF DEFENDANTS AS WERE APPENDED TO EACH PARTY'S BRIEFS WOULD CLEARLY SHOW. THE TRIAL COURT HAD NO BASIS FOR DETERMINING DEFENDANT'S (SIC) AFFIDAVITS WERE MORE CREDITABLE (SIC) THAN PLAINTIFFS' AS EACH AFFIDAVIT WAS MADE UNDER OATH. SUCH ISSUES CONCERNING THE CREDITABILITY (SIC) OF WITNESSES ARE PROPERLY THE DECISION OF A JURY AND ARE NOT TO BE DECIDED ON A MOTION FOR SUMMARY JUDGMENT.

We review a grant of summary judgment de novo. Soltis v. Wegman, Hessler, Vanderburg & O'Toole (Feb. 13, 1997), Cuyahoga App. No. 69602, unreported. In an action for summary judgment, the court is compelled to affirm provided that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) construing the evidence and the inferences to be dragon therefrom in favor of the non-moving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant. Civ.R. 56(C), Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46. Further, once the moving party has satisfied its burden, "to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the non-moving party has no evidence to support the non-moving party's claims," the nonmoving party must demonstrate, through the use of specific facts, there is a genuine issue for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 254.

The appellants brought seven claims against appellees and each will be treated individually.

It will be easier to address each count individually if we first dispose of the claim of vicarious liability as to Tower City Properties and Forest City Management.

When a private entity employs an off-duty police officer as a security officer, it will only be held vicariously liable when the police officer, acting in a dual capacity of private employee and police officer, acted outside his public duties, but within the scope of his employment with the private entity, either for its benefit or at its direction. Evans v. Smith (1994), 97 Ohio App.3d 59, 66, 646 N.E.2d 217.

In the case at bar, the officers' conduct was within the scope of their public duties by enforcing Cleveland Municipal Code 605.41(a). As a result, summary judgment was proper as to all claims regarding Tower City Properties and Forest City Management, the police officers' private employer.

Under the doctrine of "qualified immunity," the employees of a political subdivision are immune from liability unless the employees, acts or omissions "were manifestly outside the scope of employment or official responsibility" or "were with malicious purpose, in bad faith or in a wanton and reckless manner." R.C 2744.03(A)(6). In...