Lytle v. Columbus

• Decision Date: 15 November 1990
• Docket Number: No. 90AP-269,90AP-269
• Citation: 70 Ohio App.3d 99,590 N.E.2d 421
• Parties: LYTLE, Admr., et al., Appellants, v. CITY OF COLUMBUS et al., Appellees.
• Court: Ohio Court of Appeals

Page 99

70 Ohio App.3d 99

590 N.E.2d 421

LYTLE, Admr., et al., Appellants, v. CITY OF COLUMBUS et al., Appellees.

No. 90AP-269.

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

Decided Nov. 15, 1990.

Geneva G. Cleamons and James D. McNamara, Columbus, for appellants.

Ronald J. O'Brien, City Atty., and John P. Bessey, Columbus, for appellees.

PEGGY L. BRYANT, Judge.

This action is brought by the estate of Wayne Albert Lytle, through its administrator, Carla Lytle, who appeals a judgment of the Franklin County Court of Common Pleas sustaining defendants' motion for partial summary judgment.

Carla Lytle brought this action on behalf of the estate and in her personal capacity to recover damages for the wrongful death of her husband, Wayne Lytle. The complaint named four defendants: Officer Donald Bowers of the Columbus Police Department, Officer Tommy Randle, also of the Columbus Police Department, Dwight Joseph, Chief of Police, and the city of Columbus. The first count of the complaint asserts a claim against defendants Bowers and Randle for wrongful death under Ohio's wrongful death statute, R.C. 2125.01 et seq.; the second count asserts a claim against all four defendants for constitutional violations under Section 1983, Title 42, U.S.Code.

Plaintiffs' opposition to defendants' summary judgment motion is factually premised for the most part on the information contained in the depositions of Randle and Bowers. According to those depositions, on the morning of December 31, 1987, Bowers and Randle responded to an emergency at the home of Wayne and Carla Lytle. Due to the nature of the emergency call, upon arriving at the scene Bowers drew his shotgun and the two officers entered the Lytle home. After briefly conversing with Carla Lytle, the officers learned that Wayne Lytle ("Lytle") was reacting adversely, possibly to a drug or crack cocaine; and that he had been acting erratically. They were told that Lytle had sequestered himself in the northeast bedroom, armed with a knife, and was attempting suicide.

When the officers arrived at the doorway to the bedroom, they found Lytle face up on the floor "working" and "twisting" the knife into his chest and babbling incoherently. First Bowers attempted to calm Lytle and convince him to surrender the weapon. Lytle became more agitated as time progressed, rambling about the treatment he received in the world, his condition, and his desire to die.

Since Bowers' efforts were not successful, Randle began to talk to Lytle. Lytle ceased to babble, focused on Randle, and became quiet enough to begin to listen. Randle then "lost him." Lytle calmly announced that "It's over. It's all over. I am going to do it"; he stood up and twice "jammed" the knife into his chest.

Bowers immediately sprayed mace at Lytle's face. After the macing, Lytle became even more agitated and flew into a rage, once again thrusting the knife into his chest. Lytle then stood up and shouted, "Kill me, kill me." Wielding the knife above his head, Lytle charged at Bowers, who screamed, "Don't make me shoot you." Lytle backed Bowers through the hallway into the adjacent bedroom. Bowers discharged his weapon, striking Lytle, who staggered back and fell face up in the bedroom. Randle went to an outside doorway to radio for medical assistance. Neither officer attempted to disarm Lytle, handcuff him, or check his vital signs.

Both officers believed Lytle to be dead or dying after taking the first shotgun blast. However, as Randle returned to the living room following the radio dispatch, he heard Bowers screaming, "My God, he's getting up. Stay down, man. Stay down." Lytle rose to his feet, ran from the bedroom into the hallway, and assumed a "karate stance." Neither officer saw a knife in his possession. While Randle admits he might have been able to strike Lytle at that point, he testified that, had he attempted to restrain Lytle, he would have been in the line of fire of Bowers' shotgun; and that, given the circumstances, he believed Bowers would use the gun.

Lytle then charged Bowers again screaming, "Kill me, kill me." Randle heard Bowers say "He's trying to get the shotgun." Bowers testified at one point that Lytle never had his hands on the gun; however, according to Bowers, Lytle struggled with Bowers, pulling at Bowers' arms and fingers in an attempt to dislodge the gun. Seeing the fight between Lytle and Bowers, Randle used his PR-24, a type of nightstick, in an unsuccessful attempt to pull Lytle off his feet. As he stood up to let go of Lytle, the gun went off. Randle retreated against a wall. "Two or three heartbeats" later, the third shot went off, and Lytle fell to the floor. Medical care was immediately on the scene, but Lytle died.

Prior to trial, defendants moved for complete summary judgment as to defendants Randle, the city of Columbus, and Dwight Joseph, and for partial summary judgment as to defendant Bowers on the negligence claim and the Section 1983 claim for failure to train or supervise. The trial court granted defendants' motion as requested. Plaintiffs, on appeal, contest only the summary judgment in favor of defendants Randle and the city of Columbus.

Plaintiffs raise the following assignments of error:

"1. The trial court erred to the prejudice of the appellant in granting summary judgment to appellee Officer Tommy Randle.

"2. The trial court erred to the prejudice of the appellant in granting summary judgment to appellee City of Columbus."

The standard of review for this appeal is dictated by Civ.R. 56(C), which provides, in pertinent part:

" * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * * "

Preliminarily, we must address a number of procedural issues raised by defendants concerning the application of the above-cited standard and the form of evidence which may be considered by this court.

With respect to the applicable standard of review, defendants assert that the United States Supreme Court has adopted a position concerning review of summary judgment which is more favorable toward the moving party. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Arguing that the federal standard set forth in Celotex, supra, is the "better view," defendants urge this court to adopt it.

In Celotex, supra, the United States Supreme Court ruled that " * * * a party seeking summary judgment always bears the initial responsibility of informing the * * * court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact. * * * " Id. at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. Once the moving party meets this initial burden, the nonmoving party bears the reciprocal burden of producing evidence which would support a jury verdict in its favor. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202. If the nonmoving party fails to make the necessary showing with respect to an essential element of its case on which it bears the burden of proof, then the moving party is entitled to a judgment as a matter of law. Celotex, supra. Any doubt as to the existence of a genuine issue for trial should be resolved against the moving party. Anderson, supra.

The Celotex case, relied on by defendants as "the better view," has been cited with approval by a number of Ohio courts including the Supreme Court of Ohio. See Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E.2d 798; see, also, Guth v. Huron Road Hosp. (1987), 43 Ohio App.3d 83, 539 N.E.2d 670; Meinze v. Holmes (1987), 40 Ohio App.3d 143, 532 N.E.2d 170; Hodgkinson v. Dunlop Tire & Rubber Co. (1987), 38 Ohio App.3d 101, 526 N.E.2d 89; Buckeye Union Ins. Co. v. Consol. Stores Corp. (1990), 68 Ohio App.3d 19, 587 N.E.2d 391; Seamon v. J.C. Penney Co., Inc. (Mar. 29, 1990), Franklin App. No. 89AP-664, unreported, 1990 WL 34766. However, whether we apply the Celotex standard, or what defendant perceives to be a different standard under Civ.R. 56, the ultimate result in this case does not change, as discussed more fully herein.

Defendants also raise objections to this court's consideration of certain evidentiary items plaintiffs introduced in support of their opposition to summary judgment. Specifically, defendants object to a written report submitted by plaintiffs' expert, Isaiah McKinnon, Ph.D., which identifies several breaches of accepted police procedure during the shooting of Lytle. Defendants object for the first time on appeal and contend that because the report is not in affidavit form, it is outside the scope of evidentiary materials permitted by Civ.R. 56(C) and may not be considered. We disagree. When ruling on a motion for summary judgment, a trial court may consider documents other than those specified in Civ.R. 56(C) in support of the motion when no objection is raised. Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 8 Ohio App.3d 256, 456 N.E.2d 1262; Freedom Federal Savings & Loan Assn. v. GSW Associates (June 21, 1990), Franklin App. Nos. 89AP-1224 and 89AP-1234, unreported, 1990 WL 85140; Cooper v. Foster (Feb. 14, 1989), Franklin App. No. 88AP-326, unreported, 1989 WL 11941. Because defendants made no objection to the report at the trial court, they are precluded from doing so now. Defendants' argument is not well taken.

Defendants also raise concerns over evidence plaintiffs' counsel introduced for the first time before this court. On appeal, plaintiffs presented a ballistics report tending to...