Retterer v. Whirlpool Corp., 9-95-56

• Decision Date: 05 July 1996
• Docket Number: No. 9-95-56,9-95-56
• Citation: 111 Ohio App.3d 847,677 N.E.2d 417
• Parties: , 71 Empl. Prac. Dec. P 44,835 RETTERER, Appellant, v. WHIRLPOOL CORPORATION et al., Appellees.
• Court: Ohio Court of Appeals

Page 847

111 Ohio App.3d 847

677 N.E.2d 417, 71 Empl. Prac. Dec. P 44,835

RETTERER, Appellant, v. WHIRLPOOL CORPORATION et al., Appellees.

No. 9-95-56.

Court of Appeals of Ohio,

Third District, Marion County.

Decided July 5, 1996.

Elliott T. Fishman and Dennis J. Rasor, Columbus, for appellant.

Kathryn A. Mrkonich David J. Parsons, Shanthi V. Gaur and Thomas A. Frericks, Marion, for appellees.

HADLEY, Presiding Judge.

Plaintiff-appellant, Douglas Retterer, appeals from the judgment entry of the Marion County Court of Common Pleas granting the summary judgment motion of defendants-appellees, Whirlpool Corporation ("Whirlpool"), Barney Rowlinson, and Jeffrey Mouser (collectively, "appellees").

Appellant, an employee of Whirlpool since 1977, filed a complaint on April 20, 1994. ¹ The following claims were raised: count one, assault and battery; count two, false imprisonment; counts three and four, sexual harassment and sex discrimination; count five, libel, slander, and defamation; count six, intentional infliction of emotional distress; count seven, sexual harassment and sex discrimination based on the perception of having AIDS; and count eight, failure of Whirlpool to prevent the above unlawful and tortious actions. These claims generally relate to alleged incidents at Whirlpool involving coworkers and Rowlinson and Mouser, supervisors of appellant, which occurred over an extended period of time.

On June 8, 1994, appellees filed an answer and affirmative defenses. Thereafter, appellees filed a motion for summary judgment on August 31, 1995. In support of the motion, appellees included answers to appellees' first set of interrogatories and various excerpts of appellant's deposition. Appellant filed a memorandum in opposition, including his own affidavit, to the summary judgment motion on October 4, 1995. Subsequently, appellees filed a reply memorandum. In its judgment entry of November 7, 1995, the trial court granted appellees' summary judgment motion. In doing so, the trial court found that no weight should be given to the contradictory statements in appellant's affidavit (as compared to his earlier deposition testimony). It is from this judgment entry that appellant raises two assignments of error.

Assignment of Error No. 1

"The trial court erred by finding no genuine issues as to any material fact remaining to be litigated, in that it failed and refused to consider the affidavit of appellant in determining the motion for summary judgment."

Appellant maintains that his affidavit is admissible. While appellant acknowledges in his brief that the facts in his affidavit "were in some cases different from those stated in his deposition testimony," he also asserts that there is no indication of bad faith or sham. Furthermore, appellant contends that his affidavit supplemented the deposition testimony.

In Turner v. Turner (1993), 67 Ohio St.3d 337, 341-342, 617 N.E.2d 1123, 1127, the Ohio Supreme Court held:

"[W]hen a litigant's affidavit in support of his or her motion for summary judgment is inconsistent with his or her earlier deposition testimony, summary judgment in that party's favor is improper because there exists a question of credibility which can be resolved only by the trier of fact."

This court has also found error where a trial court gave no consideration to a party's affidavit filed with her memorandum opposing summary judgment even though the affidavit and an earlier deposition were contradictory. Grant v. Marion (Dec. 28, 1995), Marion App. No. 9-95-37, unreported, 1995 WL 771385. In particular, we found that such conflicting statements "go to the credibility of the witness, and not the admissibility of such documents." Id. Furthermore, absent a trial court's determination of bad faith concerning an affidavit, the affidavit must be construed as truthful. Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 816, 589 N.E.2d 1365, 1369.

Upon our review, we initially note that the trial court made no specific finding of bad faith regarding the submission of the affidavit. Moreover, even if conflicts exist between the two documents, based upon our decision in Grant, the trial court erred in failing to consider appellant's affidavit in its determination of the summary judgment motion. Appellant's first assignment of error, therefore, is well taken.

Assignment of Error No. 2

"The trial court erred in determining that summary judgment should be afforded as a matter of law."

Within this assignment of error, appellant asserts that there are genuine issues of material fact regarding the causes of action raised in the complaint and, in turn, contends that the trial court erred in granting summary judgment. We will analyze each claim accordingly. First, however, we set forth the standard for granting a summary judgment motion.

Civ.R. 56(C) provides that a motion for summary judgment is appropriate when:

"(1) [n]o 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.

Although the initial burden rests on the moving party, the nonmoving party "may not rest upon the mere allegations or denials of his pleadings, but * * * must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E). However, since a summary judgment is a shortcut resulting in termination of litigation, it must be granted carefully and all reservations must be resolved against the moving party. Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64, 66, 609 N.E.2d 144, 145. Thus, "[e]ven the inferences to be drawn from the underlying facts contained in the affidavits and depositions must be construed in the nonmoving party's favor." Turner v. Turner, 67 Ohio St.3d at 341, 617 N.E.2d at 1127.

A. Assault and Battery

The record shows that appellant played jokes on coworkers, including Rowlinson and Mouser, such as putting red tags on their backs and telling workers they could go home early. In contrast, appellant's affidavit states that he did not engage in jokes with supervisors. On several occasions in the late 1980s, apparently as a result of these jokes, Rowlinson and/or Mouser called appellant into a line office. In his affidavit, appellant stated, "I understood that I had to go into the office on those occasions, under the threat of termination." He further indicated that once in the office, the two supervisors poked and tickled him so that he would "jump" and "flop." Appellant claimed that these actions continued despite his protests.

In a 1993 incident in a line office, appellant alleges that the supervisors locked the door to the office, restrained him by holding his wrists, and proceeded to tickle and poke him in the stomach and chest areas. In his deposition, appellant stated that there was a "good possibility" that he was again called into the office for playing a joke. On this occasion, appellant maintained in his affidavit, "At the time they initially restrained me, I said, 'no, no, don't do this,' but they persisted, poking me so that I would jump and 'flop.' I continued to protest." Again, appellant averred that he went into the office due to the fear of facing discipline and/or termination. On the other hand, appellant acknowledged that his supervisors told him more than one time that he was a good employee and that he enhanced the morale of the work force.

An assault in tort is "the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact." Smith v. John Deere Co. (1993), 83 Ohio App.3d 398, 406, 614 N.E.2d 1148, 1154. A key element of assault is that the alleged tortfeasor "knew with substantial certainty that his or her act would bring about harmful or offensive contact." Id. Battery results when an individual "acts intending to cause a harmful or offensive contact, and when a harmful contact results." Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167. To constitute offensive contact, the contact must be "offensive to a reasonable sense of personal dignity." Id. There is a one-year statute of limitations for assault and battery claims. R.C. 2305.111.

Initially, we find that appellant's claims for assault and battery, relating to the incidents in the 1980s, are barred by the one-year statute of limitations. Appellant, however, has set forth facts showing that there are genuine issues of material fact regarding the 1993 incident. He described, in both his affidavit and deposition, the alleged offensive contact which took place despite his protests. Therefore, construing the evidence most favorably for appellant, we cannot conclude that there are no genuine issues of material fact regarding these causes of action.

B. False Imprisonment

As with his assault and battery claims, appellant's assertion of false imprisonment centers around the incidents in the line offices. Appellant contends that there are genuine issues of material fact regarding his consent of going to and staying in the line office.

The tort of false imprisonment results when an individual intentionally confines another in a restricted area for any appreciable length of time absent lawful justification and without that individual's consent. Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109, 573 N.E.2d 633, 636. Due to the "continuing nature" of false imprisonment, liability may be imposed even if there was an initial privilege to confine the individual. Id. Finally, we note that the statute of limitations for false imprisonment is also one...