Osborne v. Lyles

• Court: Ohio Supreme Court
• Writing for the Court: ALICE ROBIE RESNICK; MOYER, C.J., and HOLMES; HOLMES; MOYER
• Citation: Osborne v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d 825 (Ohio 1992)
• Decision Date: 01 April 1992
• Docket Number: No. 90-1807,90-1807
• Parties: OSBORNE et al., Appellants, v. LYLES; City of Cleveland, Appellee.

Page 326

63 Ohio St.3d 326

587 N.E.2d 825

OSBORNE et al., Appellants, v. LYLES; City of Cleveland, Appellee.

No. 90-1807.

Supreme Court of Ohio.

Submitted Nov. 6, 1991.

Decided April 1, 1992.

Spangenberg, Shibley, Traci & Lancione, Ellen Simon Sacks and James A. Marx, Cleveland, for appellants.

Danny R. Williams, Director of Law, and Barbara R. Marburger, Cleveland, for appellee.

ALICE ROBIE RESNICK, Justice.

This case comes before the court from the grant of a motion for summary judgment. "Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Moreover, " * * * upon appeal from summary judgment, the reviewing court should look at the record in the light most favorable to the party opposing the motion." Campbell v. Hospitality Motor Inns, Inc. (1986), 24 Ohio St.3d 54, 58, 24 OBR 135, 138, 493 N.E.2d 239, 242.

I

The record evinces the following pertinent facts ³: Figueroa and Osborne entered the R & T Tavern located on Payne Avenue in the city of Cleveland at approximately 9:45 p.m. on February 13, 1984. Shortly thereafter, someone asked if anyone on the premises owned a green automobile. Figueroa was the owner of a green automobile. Hence, both of the appellants exited the bar and observed that Figueroa's car, which was parked in the street, had been hit by another vehicle. The other automobile was operated by Cleveland Police Officer Michael Lyles, who, while not in uniform, had been driving to work when he lost control of his personal vehicle and struck Figueroa's vehicle. Lyles was due to go on duty at either 10:30 or 11:30 p.m.

As appellant Osborne approached Figueroa's damaged car, Lyles confronted him and ordered Osborne to leave the area. After Osborne twice refused to leave, Lyles took a swing at Osborne with his fist. A brief scuffle ensued, and Lyles drew a pistol and announced he was a Cleveland police officer. Osborne turned to run back into the bar, at which time Lyles with gun in hand struck Osborne in the head or shoulder. Lyles then pursued Osborne into the bar. With his revolver and badge drawn, Lyles ordered everyone to back off, identified himself as a police officer and forced Osborne to the floor. Several witnesses testified that Lyles held the gun to Osborne's head while ordering other bar patrons to "back off."

During the initial encounter between Lyles and Osborne out in the street, Figueroa ran back into the bar to call the police. Figueroa informed the police operator that there was an accident in front of the bar, and that a man was threatening his friend (Osborne) with a gun. He apparently did not identify Lyles as being a Cleveland police officer. After placing this phone call, Figueroa saw Lyles threatening Osborne and forcing him to lie on the floor. Figueroa then called the Cleveland Police a second time. This time, Figueroa informed the operator that there was a man inside the bar with a gun, but again did not identify Lyles as a police officer. Figueroa then exited the phone booth and observed Lyles pointing the gun at both Osborne and other patrons inside the bar. Within five to fifteen minutes, on-duty Cleveland police officers arrived at the scene. The responding officers took control of the scene, initially unaware that Lyles was an off-duty police officer. Subsequently, one of the officers recognized Lyles as a Cleveland police officer.

Patrol Officer Linda Bazley was one of the officers to arrive on the scene. She testified that she and her partner went inside the bar and observed a lot of screaming and yelling, and that the bar patrons were "hysterical." After visually locating Officer Lyles, the two officers, not recognizing him at first, identified themselves and ordered Lyles to drop his gun. Lyles did not respond, and Bazley stated that her partner was about to shoot Lyles when Bazley recognized Lyles as being a police officer. Lyles told Officer Bazley that he had placed someone under arrest, although Bazley did not herself see Lyles place anyone under arrest. With the situation apparently under control, Bazley called her sergeant, William Manocchio.

Sergeant Manocchio stated that although he could not remember how the call to respond came in, departmental procedure required that whenever an off-duty officer is involved in an accident, that officer's supervisor was to respond and conduct an investigation. Sergeant Manocchio testified that when he first arrived, there were a lot of police cars already on the scene. The sergeant also suggested that there may have been racial tension surrounding the events that transpired, in that there were numerous Caucasian persons on the scene and Lyles was the only black person. Manocchio stated that Lyles was "scared to death. I mean he was literally shaking." Manocchio also stated that all he could remember Lyles telling him about the accident was that "he lost control and hit a parked car."

Officer Lyles' watch commander at the time of the incident was Lieutenant Gail M. Maxwell. She testified that Lyles was to begin his shift at either 10:30 or 11:30 that evening. However, when he reported for duty, Lyles informed Lieutenant Maxwell that "he had been involved in a small accident and that when he got out, that two males exited the bar across the street from where the accident had occurred, that they shouted racial obscenities at him and that an altercation ensued, and that at the time he had tried to place them under arrest and that Third District cars had arrived on the scene * * *." Lyles also stated that he had been injured and asked to go to the hospital. Maxwell reiterated that Lyles stated to her that "he tried to arrest these people because of the fact that they had assaulted him." Maxwell also stated that no disciplinary action was ever taken against Lyles for the incident.

Cleveland Police Captain Edward J. Malloy, while not attached to the district in question and off duty at the time, testified that he received a phone call at home from a friend informing him that Osborne, also a friend, was being held at gunpoint in a bar, that the person was threatening to kill Osborne, and that this person was a police officer. Captain Malloy immediately went to the scene to determine what was taking place. Several police officers were already at the bar when Captain Malloy arrived and the situation was under control. Malloy stated that Osborne had shoulder injuries and was taken to a hospital. Captain Malloy also stated that the supervisor of an off-duty officer has a duty to investigate an accident involving that officer.

II

Appellants assert that liability should be imposed upon the city under several theories, including general agency principles and the doctrine of respondeat superior. The city counters by arguing that Lyles was not authorized to conduct himself in the manner in which he acted, and that Lyles was clearly outside the scope of his employment at the time of these events. We believe the issues relating to the application of respondeat superior are dispositive, and we will confine our analysis to that issue.

The doctrine of respondeat superior is expressed in the Restatement of the Law 2d, Agency (1958) 481, Section 219(1), which states as follows: "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Ohio law provides, "[i]t is well-established that in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the scope of employment. Moreover, where the tort is intentional, * * * the behavior giving rise to the tort must be 'calculated to facilitate or promote the business for which the servant was employed * * *.' " (Citations omitted.) Byrd v. Faber (1991), 57 Ohio St.3d 56, 58, 565 N.E.2d 584, 587. In general, "an intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefor. * * * " (Citations omitted.) Vrabel v. Acri (1952), 156 Ohio St. 467, 474, 46 O.O. 387, 390, 103 N.E.2d 564, 568. Stated otherwise, "an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business." Byrd, supra, 57 Ohio St.3d at 59, 565 N.E.2d at 588.

However, it is commonly recognized that whether an employee is acting within the scope of his employment is a question of fact to be decided by the jury. Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 74 O.O.2d 427, 344 N.E.2d 334. Only when reasonable minds can come to but one conclusion does the issue regarding scope of employment become a question of law. As the Supreme Court of California has recently stated, "[o]rdinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when 'the facts are undisputed and no conflicting inferences are possible.' * * * " Mary M. v. Los Angeles (1991), 54 Cal.3d 202, 213, 285 Cal.Rptr. 99, 105, 814 P.2d 1341, 1347, quoting Perez v. Van Groningen & Sons, Inc. (1986), 41 Cal.3d 962, 968, 227 Cal.Rptr. 106, 109, 719 P.2d 676, 679.

The willful and malicious character of an employee's act does not always, as a matter of law, remove the act from the scope of employment. Stranahan Bros. Catering Co. v. Coit (1896), 55 Ohio St. 398,...