Schulman v. City of Cleveland
| Decision Date | 24 May 1972 |
| Docket Number | No. 71-294,71-294 |
| Citation | 283 N.E.2d 175,30 Ohio St.2d 196 |
| Parties | , 59 O.O.2d 196 SCHULMAN, Appellee, v. CITY OF CLEVELAND, Appellant, et al. |
| Court | Ohio Supreme Court |
In 1969, Donald J. Guittar, Assistant Law Director of Cleveland, and the appellee herein, Milt Schulman, met as opposing counsel in a reapportionment action (Tanko v. Stringer, case No. C69-119, filed in the United States District Court, Northern District of Ohio. Guittar represented certain Cleveland municipal and public officers who were named defendants.
On April 2, an alleged altercation occurred at appellee's office, between him and Guittar. The private dispute that resulted therefrom found Schulman as a defendant in Cleveland Municipal Court on a criminal assault and battery charge, with Guittar as affiant and prosecuting witness. Schulman was subsequently acquitted, and thereafter filed an action of his own in the Common Pleas Court of Cuyahoga County against the city of Cleveland and Guittar, wherein damages for trespass, personal injuries and malicious prosecution were asked against the city.
The city demurred separately to the latter action, urging that '* * * the office of Law Director is an executive office of defendant, city, the duties of which are governmental and that the defendant, city, has governmental immunity and no liability for the torts of defendant, Guittar in his capacity as Assistant Law Director.' The demurrer was sustained by the trial court.
The Court of Appeals for Cuyahoga County reversed that decision, stating:
The matter is before this court pursuant to our allowance of a motion to certify the record.
Clarence L. James, Jr., director of law, and Paul J. Brady, Cleveland, for appellants.
Schulman & Schulman and Jack M. Schulman, Cleveland, for appellee.
The question of whether Donald J. Guittar acted within the scope of his employment as an employee and agent of the city is prefatory to any consideration of governmental immunity in this matter. As we stated in Rogers v. Allis-Chalmers Mfg. Co. (1950), 153 Ohio St. 513, 526, 92 N.E.2d 677, 683:
'In order to obligate a master to respond in damages for the negligence of a servant it is necessary * * * that the servant be acting within the scope of his employment * * *.' See, also, Little Miami Rd. Co. v. Wetmore (1869), 19 Ohio St. 110, and Higbee Co. v. Jackson (1920), 101 Ohio St. 75, 128 N.E. 61.
We are unable to discern any grant of authority in either the Revised Code or the Cleveland Municipal Charter which allows...
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