Jones v. Wittenberg University

• Decision Date: 22 April 1976
• Docket Number: Nos. 75-1459,75-1460,s. 75-1459
• Citation: 534 F.2d 1203
• Parties: Richard H. JONES, Administrator of the Estate of John C. Lobach, Plaintiff-Appellee-Cross-Appellant, v. WITTENBERG UNIVERSITY et al., Defendants-Appellants-Cross-Appellees (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1203

534 F.2d 1203

Richard H. JONES, Administrator of the Estate of John C.

Lobach, Plaintiff-Appellee-Cross-Appellant, v. WITTENBERG UNIVERSITY et al.,

Defendants-Appellants-Cross-Appellees (two cases).

Nos. 75-1459, 75-1460.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 9, 1975.

Decided April 22, 1976.

Leo F. Krebs, Bieser, Greer & Landis, Dayton, Ohio, for appellant in No. 75-1459 and appellee in No. 75-1460.

James E. Beasley, Philadelphia, Pa., for appellees in No. 75-1459 and appellants in No. 75-1460.

Before PHILLIPS, Chief Circuit Judge, and CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from a jury verdict for Appellee in an action under Ohio's Wrongful Death Act and survival statute brought within the District Court's diversity jurisdiction. 28 U.S.C. § 1332 (1970). ¹ The jury found Appellants Wittenberg University and Chester Phillips, liable for decedent's death and injuries and awarded $27,000 damages in the wrongful death action and $100,000 damages for pain and suffering in the survival action. Decedent's estate was also awarded $1,331.72 for funeral expenses. The District Judge conditioned an order denying a motion for a new trial on Appellee's acceptance of a $50,000 remittitur of damages in the survival action. Appellee accepted the remittitur "without prejudice" to his right of appeal. Appellee has filed a cross-appeal from the remittitur and from other rulings of the trial court with respect to damages recoverable in the survival action.

This case arose out of the shooting death of John Lobach, hereinafter referred to as decedent, a student at Wittenberg University, on May 10, 1969 by Chester Phillips, a security guard employed by the university. The incident began at 2:40 a. m. when Phillips and Frank Lytle, university security guards, discovered decedent on a second story ledge of a women's dormitory on campus. He descended when ordered to do so by the guards and was placed in custody. Under interrogation at the scene the decedent explained that he was there to meet a girl he had met earlier in the evening and who had invited him up. He gave a false name and informed them that he was a local high school student. The security guards were hesitant to place the decedent under arrest. Although they had radio contact with the local police, they did not report the incident. No attempt was made to ascertain what, if anything, had occurred in the dormitory. Instead, they placed decedent in the backseat of the patrol car and drove around the campus looking for a supervisor to make the decision whether or not to place decedent under arrest. Decedent was not searched though a search would have disclosed that he was carrying correct identification. He was not handcuffed, according to guard Frank Lytle, because to handcuff him would mean that he was under arrest. After driving around for a half hour they returned to the dormitory and Lytle went inside to talk with the housemother. While he was inside he heard two shots being fired.

The only direct testimony on the shooting came from Chester Phillips, the security guard who fired the fatal shot. ² He testified that decedent bolted from the car ignoring several orders to "halt" and only sped up after he fired the first warning shot in the air. He testified that he then fired a second shot at the ground in the general direction of decedent's feet. Phillips claimed that he was not aiming at decedent and had no intention of wounding him. He assumed that he had missed and decedent had escaped when he heard the sound of something hitting a parked car. Phillips raced to the spot and found decedent's body sprawled on the ground. The second shot had pierced his chest. A thirty to forty yard trail of blood indicated that decedent had run that distance after being struck by the bullet.

Since jurisdiction in this case is based upon diversity of citizenship, substantive legal questions are governed by state law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Appellee derives his right of action from two related Ohio statutes, the Wrongful Death Act, Ohio Rev.Code § 2125.01 (1968), and survival statute, Ohio Rev.Code § 2305.21 (1968). Although both these provisions are triggered by an individual's death, they create distinct causes of action designed to accomplish divergent statutory purposes. See May Coal Co. v. Robinette, 120 Ohio St. 110, 165 N.E. 576 (1926). See generally 16 O.Jur.2d Death § 36 (1971).

The section creating an action for wrongful death provides:

When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the corporation which or the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances which make it murder in the first or second degree, or manslaughter.

Rev.Code § 2125.01. Although wrongful death actions must be brought in the name of the personal representative of the deceased, the action is "for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent." Rev.Code § 2125.02. Wrongful death actions are designed to recompense a decedent's beneficiaries for any "pecuniary injury" they may have suffered by virtue of his untimely death. Id. Survival actions, by contrast, are not concerned with the wrong to the beneficiaries but with the wrong to the injured person. The survival statute provides that any cause of action which a person would have for personal injury during his lifetime survives his death and may be brought on behalf of his estate. ³ The same act may provide a basis for an action in tort saved by the survival statute and an action for wrongful death if the injuries sustained thereby result in a person's premature death. See e.g., Hillard v. Western & Southern Life Ins. Co., 68 Ohio App. 426, 34 N.E.2d 75 (Ct.App. Allen Co. 1941). See generally 1 O.Jur.2d Abatement § 39 (1953).

The trial below was bifurcated. Along with instructions on the question of liability, the District Judge submitted a list of special interrogatories to the jury. These interrogatories reflected the various theories of counsel and were designed to disclose the bases for the jury's verdict. After finding Appellants liable for the wrongful death of the decedent and for the conscious pain he suffered prior to his death, the jury answered the following written interrogatories:

The answers to the interrogatories disclose that the jury found that the decedent's injuries were caused by the negligence of Chester Phillips, the security guard who fired the fatal shot. Wittenberg University, having stipulated that Mr. Phillips was acting within the scope of his employment at the time of the shooting, was held liable for his negligence under the theory of respondeat superior.

Appellant contends that the jury's finding of negligence is contrary to the weight of the evidence because Phillips' uncontroverted testimony was that he intended to shoot in the direction of the fleeing student, although he did not intend to wound him. Appellant argues that a finding of negligence may not be grounded on a wilful and intentional act. However, this argument overlooks the principle of tort law that an intentional act may be so negligently performed that it results in civil liability for the actor. To a degree all negligent conduct is intentional in that it is voluntary. Even though injury may be unintended, the act which lead to the injury to be actionable negligence must be the product of the actor's will.

To constitute negligence the conduct involved, be it act or omission, must be voluntary conduct. This does not mean that the actor intended the injurious result of his conduct or intended that it should produce some intermediate result which ultimately brought about the injury. The requirement is not that any particular state of mind must accompany the act, but simply that the act or omission itself be a conscious manifestation of the actor's will. Thus . . . the bodily movement or rest of a man asleep or in a trance will not itself constitute negligence.

2 F. Harper & F. James, The Law of Torts § 16.1 at 901-02 (1956). The voluntary act of firing a pistol is an intentional act, even though harm was not intended, but it may constitute negligence if it was done so carelessly as to result in foreseeable injury. See Gearhart v. Angeloff, 17 Ohio App.2d 143, 244 N.E.2d 802 (Ct.App. Summit Co. 1969). See also, Young v. Kelley, 60 Ohio App. 382, 21 N.E.2d 602 (Ct.App. Auglaize Co. 1938). In this case Phillips testified that the second shot which struck decedent was meant to be a warning shot which was fired at the ground in decedent's direction rather than in the air as the first shot had been. Based on this testimony the jury could reasonably find that decedent's death was caused by Phillips' negligent firing of the second warning shot.

Appellants further argue that the jury's answers to the interrogatories are inconsistent with a finding of liability. Appellants conclude that the jury impliedly found that the force used by Chester Phillips was not unreasonable under the circumstances. This conclusion is tenuous at best, based on unfounded assumptions and faulty premises, and contradicts the jury's express finding that the decedent's death was caused by Phillips' negligence. In Ohio any person who has reasonable grounds to believe a felony has been committed may detain a suspect until a warrant may be obtained. Rev.Code § 2935.04. A police officer may accomplish this detention by the use of "reasonable force". ⁴ See Clark v. Carney, 71 Ohio App. 14, 42 N.E.2d 938 (Ct.App....