Linley v. DeMoss

• Decision Date: 28 July 1992
• Docket Number: No. 92AP-102,92AP-102
• Citation: 83 Ohio App.3d 594,615 N.E.2d 631
• Court: Ohio Court of Appeals
• Parties: LINLEY et al., Appellants, v. DeMOSS, CTY. COMMR.; Smith, Sheriff, et al., Appellees.

Page 594

83 Ohio App.3d 594

615 N.E.2d 631

LINLEY et al., Appellants, v. DeMOSS, CTY. COMMR.; Smith, Sheriff, et al., Appellees.

No. 92AP-102.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided July 28, 1992.

Paul Scott Co., L.P.A., and Paul Scott; Reinhart Law Offices and Harry R. Reinhart, for appellants.

Michael Miller, Franklin County Pros. Atty., and Donald Collins, Asst. Pros. Atty., for appellees.

MARTIN, Judge.

Plaintiffs-appellants, Geneva G. Linley et al. ("plaintiffs"), timely appeal from the judgment of the Franklin County Court of Common Pleas entered January 27, 1992, which granted defendants-appellees' motion for summary judgment and overruled plaintiffs' cross-motion for partial summary judgment.

Plaintiffs raise the following assignments of error:

"First Assignment of Error:

"The trial court erred to appellants' prejudice by granting the defendants' motion for summary judgment on the trespass claim against Sgt. Hammond.

"Second Assignment of Error:

"The trial court erred to appellants' prejudice by granting the defendants' motion for summary judgment on the civil rights claim under 42 U.S.C. § 1983 against Sgt. Hammond and Sheriff Smith.

"Third Assignment of Error:

"The trial court erred to appellants' prejudice by denying their cross-motion for partial summary judgment on gross negligence (recklessness) only."

Plaintiffs, Geneva G. Linley and her two minor great-grandchildren, filed their complaint on June 17, 1990, seeking compensatory and punitive damages, plus injunctive relief, predicated upon causes of action in trespass, the negligent infliction of extreme emotional distress, invasion of privacy, and upon alleged civil rights violations of Section 1983, Title 42, U.S.Code. The named defendants included the Board of Franklin County Commissioners, Franklin County Sheriff Earl O. Smith, and two "John Doe" deputy sheriffs (later amended to join Deputy Sargeant Hammond specifically).

On July 30, 1990, a joint answer was filed in behalf of all defendants asserting, inter alia, an immunity defense, a Civ.R. 12(B)(6) defense, and good faith acts committed within the scope of their official employment.

With leave of court, defendants jointly moved for summary judgment on June 7, 1991, which motion was supported by plaintiff Linley's answers to certain interrogatories, plus several depositions. This motion was controlled by the trial court's non-oral hearing rules. On July 5, 1991, plaintiffs filed a memorandum opposing the defense summary judgment as well as their own cross-motion for partial summary judgment as to the trespass, negligence, and civil rights violations claims. Defendants responded on July 18, 1991.

On January 16, 1992, the trial court issued a five-page decision in which, on essentially undisputed facts, it concluded that the actions of defendants at issue amounted only to negligence as a matter of law. Consequently, the trial court reasoned that plaintiffs' claims were not actionable by virtue of R.C. Chapter 2744 immunity and for other reasons stated. The trial court granted the defense's summary judgment motion, and it overruled the cross-motion of plaintiffs. That decision was journalized on January 27, 1992, and is the basis for the instant appeal. On appeal, plaintiffs concede that a dismissal of the county commissioners was proper.

As mentioned, the material facts underlying this lawsuit are not in genuine dispute. Sometime on December 22, 1988, and as a result of accidental breakage, officials of United Parcel Service summoned the Franklin County Sheriff's Department to examine a package containing suspected illicit drugs. The package was en route from Arizona to 97 Rumsey Road, Columbus, Ohio. Sheriff's officers confirmed the presence of methamphetamine, a controlled substance, after lab testing, and they obtained a search warrant. The package was then resealed, and a "controlled" delivery operation was arranged to 97 Rumsey Road at roughly 8:00 p.m. that evening by a deputy sheriff disguised as a UPS deliveryman.

While the package was being delivered to 97 Rumsey Road, several other deputies placed themselves in the area, including an armed "entry team." Deputy Sgt. John Hammond was present as was Sheriff Smith. As the package was being delivered to, and accepted at, the 97 Rumsey Road address, the front door of the residence next door, being 87 Rumsey Road, was opened by an occupant thereof. Present in 87 Rumsey Road at that time were plaintiff Geneva Linley, Teresa Perry, and Linley's minor great-granddaughters, Jennifer and Jessica Perry.

Once the package had successfully been delivered to the 97 Rumsey Road premises, the sheriff's "entry team," armed with a search warrant, exited their vehicles and moved towards the 87 Rumsey Road residence in error. Noting the wrong house, Sgt. Hammond ran ahead of the other officers to 87 Rumsey Road, opened the outer front door and briefly entered the premises, determined from Teresa Perry that 97 Rumsey Road was next door, and then successfully diverted the entry team to the proper address before they entered plaintiffs' residence.

When Hammond entered plaintiffs' home, he admittedly was armed and his weapon was drawn. This incident caused Linley to faint and naturally emotionally upset the other occupants. Hammond remained briefly in the Linley residence to ascertain if medical, or other, assistance was needed and to apologize for his intrusion. The other deputies meanwhile had conducted a "tactical entry" at the correct address, 97 Rumsey Road, and arrested two occupants there for drug offenses.

The evidentiary materials submitted in conjunction with the parties' respective Civ.R. 56 motions suggest that Sgt. Hammond was not personally in charge of this police operation. Also, although present in the area, Sheriff Smith did not actually participate in, or directly supervise, the operation either.

In May 1990, Linley sought treatment from Dr. Nick Marzella, Ph.D., a licensed psychologist. His diagnosis was "post-traumatic stress disorder" resulting from the above-described December 22, 1988 incident which had aggravated a pre-existing condition of anxiety/depression partly attributed to her husband's death in May 1988 and her daughter's relocation from the neighborhood. Therapy terminated in October 1990 with a "good" prognosis for recovery.

All three of the assignments of error raised by plaintiffs relate to the trial court's application of Civ.R. 56. Summary judgment is proper when (1) there is no genuine issue as to any material fact; (2) the movant is entitled to judgment as a matter of law; and (3) construing the evidence most strongly in favor of the nonmoving party, it appears that reasonable minds can come to but one conclusion, and same is adverse to the party against whom the motion is made. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47; Applegate v. Fund for Constitutional Govt. (1990), 70 Ohio App.3d 813, 817, 592 N.E.2d 878, 881. As noted, the "material" facts underlying this case are not in "genuine dispute"; therefore, that element for summary judgment relief has been satisfied. Mount v. Columbus & S. Ohio Elec. Co. (1987), 39 Ohio App.3d 1, 2, 528 N.E.2d 1262, 1263-1264; Stepien v. Franklin (1988), 39 Ohio App.3d 47, 50, 528 N.E.2d 1324, 1328-1329; Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 90-91, 31 OBR 250, 255-256, 509 N.E.2d 399, 404-405, applied.

In their first assignment of error, plaintiffs claim error in the trial court's award of summary judgment to Sgt. Hammond on their state law claim of common-law trespass. In the second assignment of error, plaintiffs claim error in the grant of summary judgment to both Sgt. Hammond and Sheriff Smith on their federal civil rights claim. Upon examination, the trial court determined that the conduct of those authorities amounted only to negligence and, therefore, for different reasons neither of these claims was actionable. We will treat these assignments of error together.

A common-law tort in trespass upon real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another whereby damages directly ensue, even though such damages may be insignificant. See, generally, 88 Ohio Jurisprudence 3d (1989) 579-581, Trespass, Sections 1-2. The act of nonconsensual entry may be intentional or negligent. While the trial court correctly determined that Sgt. Hammond did commit a "technical trespass" by virtue of his unauthorized entry into Linley's home, it concluded that this conduct was "careless," but neither wanton, reckless, nor done with a malicious purpose and, therefore, amounted only to "negligence." We agree.

The collective conduct of the law enforcement officers relating to the execution of the search warrant for 97 Rumsey Road would be generously described as "careless." Nothing contained in this opinion should remotely be construed as a condonation by this court of such inexcusably poor police work. From a factual standpoint, Sgt. Hammond clearly committed a trespass on Linley's property even though his intrusion was minimal. Fortunately, Sgt. Hammond had the good sense and presence of mind to act as he did and to redirect the entry team to the proper address before a truly egregious mistake was made with potentially disastrous...