Martin v. Central Ohio Transit Auth.

• Decision Date: 25 October 1990
• Docket Number: No. 89AP-1371,89AP-1371
• Citation: 590 N.E.2d 411,70 Ohio App.3d 83
• Parties: MARTIN et al., Appellants and Cross-Appellees, v. CENTRAL OHIO TRANSIT AUTHORITY et al., Appellees and Cross-Appellants.
• Court: Ohio Court of Appeals

Page 83

70 Ohio App.3d 83

590 N.E.2d 411

MARTIN et al., Appellants and Cross-Appellees, v. CENTRAL OHIO TRANSIT AUTHORITY et al., Appellees and Cross-Appellants.

No. 89AP-1371.

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

Decided Oct. 25, 1990.

Lancione Law Offices and Robert M. Lancione, Columbus, for appellants and cross-appellees.

Crabbe, Brown, Jones, Potts & Schmidt, Larry H. James and William H. Jones, Columbus, for appellee and cross-appellant Central Ohio Transit Authority.

Wiles, Doucher, Van Buren & Boyle Co., L.P.A., Thomas E. Boyle and John T. Kelly, Chorpenning, Good & Mancuso Co., L.P.A., and Darin G. Kendall, Columbus, for appellee and cross-appellant Claude Curtis.

REILLY, Presiding Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas. The trial court granted summary judgment to defendant Claude Curtis ("Curtis") and denied summary judgment to defendant Central Ohio Transit Authority ("COTA"). Plaintiffs LaMonte Martin and his mother, Vivian Martin, appeal, asserting the following assignments of error:

"I. The trial court committed prejudicial error when it failed to consider in a summary judgment proceeding the transcript of criminal trial testimony which testimony relates to the incident at issue.

"II. The trial court committed prejudicial error when it found that there were no genuine issues of material facts that defendant Claude Curtis was entitled to summary judgment as a matter of law.

"III. The trial court committed prejudicial error when it found that there was no genuine issue of material fact as to whether defendant Claude Curtis was privileged in using deadly force in self-defense."

Curtis has filed a cross-appeal, advancing the following assignment of error:

"The trial court, fully advised of the facts and circumstances of the pending action, erred in not making a specific determination as to the appropriateness of Central Ohio Transit Authority's (COTA's) refusal to defend its employee, the Cross-Appellant herein, Claude Curtis pursuant to Revised Code § 2744.07(C)."

COTA has filed a cross-appeal, assigning the following errors:

"I. Appellants alleged that the trial court committed prejudicial error when it failed to consider in a summary judgment proceeding the criminal transcript from the case of Ohio v. Kevin D. Hopewell, Franklin County Municipal Court, Case No. 86-6895-1-2.

"II. Appellants allege that the trial court committed prejudicial error when it found that there were no genuine issues of material facts and that defendant, Claude Curtis, was entitled to judgment as a matter of law.

"III. Appellants allege that the trial court committed prejudicial error when it found that there were no genuine issues of material facts as to whether defendant, Claude Curtis, was privileged in using deadly force in self-defense.

"IV. Defendant-Appellee and Cross-Appellant, Claude Curtis, stated that the trial court, fully advised of the facts and circumstances of the pending action erred in not making a specific determination to the appropriateness of Central Ohio Transit Authority's (COTA's) refusal to defend its employee, Claude Curtis, pursuant to Ohio Revised Code Section 2744.07(C).

"V. Defendant-Appellee and Cross-Appellant, Central Ohio Transit Authority, states that the trial court erred in overruling COTA's motion for summary judgment."

Plaintiff LaMonte Martin was shot by Curtis on a COTA bus parked near Northland Shopping Mall. Prior to the shooting, Curtis, a COTA bus driver, had parked his bus and locked the doors so that he could use a restroom in the Sears store at the mall. Several passengers remained on the bus.

While Curtis was in Sears, several young men tampered with the controls of the bus through an unlocked window. Harsh words were exchanged between them and some of the passengers. When Curtis returned and boarded the bus, one of the passengers explained what had happened. The passenger pointed to the youths involved as they entered the bus in an attempt to ride.

Three youths were involved. Kevin Hopewell was the first to enter the bus and stood closest to Curtis. LaMonte Martin stood behind Hopewell near the fare box. Keno Jarrett stood outside the bus near the stairs.

When Kevin first entered the bus he did not pay his fare, but told Curtis that one of his friends would pay it for him. Curtis told Hopewell that he and his companions could not ride the bus because of their prior actions. Whereupon, they exchanged harsh words with Curtis, demanding that they be let on the bus. At this point, one of them pushed Curtis back into his driver's seat.

Curtis reached behind his seat and pulled a revolver out of his camera bag. Curtis, who is right-handed, held up the gun in his left hand to show it to the youths. Instead of retreating, they tried to grab the gun, struggling for some time with Curtis. The gun discharged and the bullet struck plaintiff LaMonte Martin in the chest. The youths, including plaintiff, immediately fled the scene. However, plaintiff's condition worsened. As a result of the wound, he has been in a comatose state since the shooting incident. Subsequently, LaMonte and his mother commenced this personal injury action against defendants COTA and Curtis.

Curtis moved for summary judgment. He attached his affidavit detailing his account of the events. Plaintiffs responded by filing a memorandum contra. In the memorandum, plaintiffs made reference to their deposition of Curtis and a criminal trial transcript, both of which were previously filed with the court. The criminal trial transcript was a partial transcript of proceedings in State v. Hopewell, Franklin County Municipal Court, Criminal Division, No. 86-6895-1-2, unreported. At the criminal trial of Kevin Hopewell, many witnesses testified about the shooting incident. In their memorandum in opposition to summary judgment, plaintiffs referred to portions of this transcript in an effort to establish a genuine issue of material fact.

The trial court found that it could not properly use the Hopewell transcript under Civ.R. 56(C). Considering only Curtis's affidavit and deposition, the court found that there was no genuine issue of material fact because Curtis was entitled to qualified immunity under R.C. 2744.03(B). Further, the court declined to determine whether COTA had a duty to defend Curtis under R.C. 2744.07(C) because an action had not been filed for such a determination. The court found no just cause for delay pursuant to Civ.R. 54(B).

In the first assignment of error, plaintiffs contend that the trial court erred in failing to consider the Hopewell transcript. Plaintiffs maintain that the Hopewell criminal transcript was analogous to an admissible affidavit under Civ.R. 56(C) and, therefore, should have been considered. Alternatively, plaintiffs contend that the trial court should have allowed them to supplement the record with an admissible deposition or affidavit.

Civ.R. 56(C) provides, in part:

"Motion and Proceedings Thereon. The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. * * * " (Emphasis added.)

The court found that it could not consider the Hopewell transcript because it " * * * arose from an action separate and apart from the case at bar and involved different parties, issues, and counsel." Hence, the court concluded that the transcript could not be considered as " * * * transcripts of evidence in the pending case, * * * " as stated in Civ.R. 56(C).

As Civ.R. 56(C) expressly provides, no evidence or stipulation may be considered except as stated in the rule. The summary judgment rule specifies the evidence that may be considered. This has been the law since pre-rule practice. See Morris v. First Natl. Bank & Trust Co. of Ravenna (1968), 15 Ohio St.2d 184, 44 O.O.2d 153, 239 N.E.2d 94.

The proper procedure for the introduction of evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate the material by reference into a properly framed affidavit. Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 515 N.E.2d 632. If there is no objection, then the court in its discretion may consider the material. Id. at 222, 515 N.E.2d at 634. The Hopewell transcript was not incorporated or authenticated by affidavit, and Curtis objected to its use. Hence, the issue involves defining the term "transcripts of evidence in the pending case."

In Carrabine Constr. Co. v. Chrysler Realty Corp. (1986), 25 Ohio St.3d 222, 25 OBR 283, 495 N.E.2d 952, the Supreme Court held that a transcript of oral testimony adduced at a prior summary judgment proceeding could properly be considered at a second summary judgment proceeding even though, as oral testimony, the evidence was inadmissible in the first instance. The court found that the transcript was within the Civ.R. 56 term "transcripts of evidence in the pending case." The court also found that the transcript was reliable evidence because it was " * * * sworn testimony in a court of law at a hearing in which opposing counsel was present." Id. at 226, 25 OBR at 285, 495 N.E.2d at 955. See, also, Barazzotto v. Intelligent Systems, Inc. (1987), 40 Ohio App.3d 117, 532 N.E.2d 148 (transcript of earlier arbitration proceeding may support a motion for summary judgment).

Plaintiffs rely on Napier v. Brown (1985), 24 Ohio App.3d 12, 24 OBR 33, 492 N.E.2d 847, for the proposition...