Fox v. Bryan

[Cite as Fox v. Bryan, 2014-Ohio-1253.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Tracy Fox, :
Plaintiff-Appellee, :
v. No. 13AP-257
: (C.P.C. No. 12 CV 001578)
Dale Bryan,
: (REGULAR CALENDAR)
Defendant-Appellant,
:
Nationwide Insurance Company et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on March 27, 2014
Law Offices of Stanley B. Dritz, Stanley B. Dritz, and
D. Chadd McKitrick, for appellee.
Poling Law, and Paul-Michael La Fayette, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Dale Bryan, defendant-appellant, appeals the judgment of the Franklin
County Court of Common Pleas, in which the court denied appellant's motion for
summary judgment.
{¶ 2} At all times relevant, appellant was employed as a police officer with the
Madison Township police department ("the police department"). On July 28, 2010, Tracy
Fox, plaintiff-appellee, and appellant were involved in an automobile accident in which
the vehicle appellant was driving struck the rear of another vehicle and pushed it into the
rear of appellee's vehicle.
No. 13AP-257 2
{¶ 3} On February 7, 2012, appellee filed a complaint sounding in negligence
against appellant and the police department. Appellant claimed in his answer that he was
acting within the course and scope of his employment with the police department at the
time of the accident because he was working his part-time shift with the police
department and had been picking up police equipment from a retailer at the time of the
accident. Appellant was not wearing a police uniform at the time of the accident and was
driving an unmarked Chevrolet Blazer owned by the police department. On February 14,
2012, appellee filed an amended complaint, asserting claims against appellant and her
uninsured/underinsured motorists coverage carrier, Nationwide Insurance Company, but
asserting none against the police department. Appellee voluntarily dismissed Nationwide
as a defendant without prejudice on April 24, 2012.
{¶ 4} On November 13, 2012, appellant filed a motion for summary judgment. On
February 26, 2013, the trial court denied appellant's motion for summary judgment,
finding there remained genuine issues of material fact as to whether appellant was acting
within the course and scope of his employment at the time of the accident. Appellant has
appealed the trial court's judgment, asserting the following assignment of error:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S
MOTION FOR SUMMARY JUDGMENT AS NO GENUINE
ISSUES OF MATERIAL FACT EXIST AS TO WHETHER
APPELLANT DALE BRYAN IS ENTITLED TO STATUTORY
IMMUNITY PURSUANT TO R.C. 2744.03.
{¶ 5} Appellant argues in his sole assignment of error that the common pleas
court erred when it denied his motion for summary judgment. Summary judgment is
appropriate when the moving party demonstrates that: (1) there is no genuine issue of
material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
reasonable minds can come to but one conclusion when viewing the evidence most
strongly in favor of the non-moving party, and that conclusion is adverse to the non-
moving party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29;
Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review
of a trial court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29.
This means that an appellate court conducts an independent review, without deference to
the trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521,
No. 13AP-257 3
2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-
4490, ¶ 6 (10th Dist.).
{¶ 6} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing there is a genuine issue for trial. Civ.R. 56(E);
Id. If the non-moving party does not so respond, summary judgment, if appropriate, shall
be entered against the non-moving party. Id.{¶ 7} The sole issue before us is whether there remains a genuine issue of
material fact as to whether appellant was acting within the course and scope of his
employment with the police department so as to be entitled to immunity under R.C.
2744.03(A)(6). R.C. Chapter 2744, the Political Subdivision Tort Liability Act, sets forth a
comprehensive statutory scheme for the tort liability of political subdivisions and their
employees. Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio
St.3d 23, 2013-Ohio-2410, ¶ 11. The statute "is the General Assembly's response to the
judicial abrogation of common-law sovereign immunity. Its manifest purpose is the
preservation of the fiscal integrity of political subdivisions." Estate of Graves v.
Circleville, 124 Ohio St.3d 339, 2010-Ohio-168, ¶ 12, citing Wilson v. Stark Cty. Dept. of
Human Servs., 70 Ohio St.3d 450, 453 (1994).
{¶ 8} R.C. 2744.03(A)(6) grants employees of political subdivisions immunity
from liability, unless any of three exceptions to that immunity apply. Anderson v.
Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 21. Those exceptions are (1) the
employee's acts or omissions were manifestly outside the scope of the employee's
employment or official responsibilities (R.C. 2744.03(A)(6)(a)), (2) the employee's acts or
No. 13AP-257 4
omissions were with malicious purpose, in bad faith or in a wanton or reckless manner
(R.C. 2744.03(A)(6)(b)), and (3) civil liability is expressly imposed upon the employee by
a section of the revised code. R.C. 2744.03(A)(6)(c).
{¶ 9} Here, as previously mentioned, the only issue before us is whether appellant
was acting outside the scope of his employment at the time of the accident. If appellant
was acting within the scope of his employment, appellant would be entitled to immunity
pursuant to R.C. 2744.03(A)(6)(a). Appellant claims that he established he was on duty at
the time of the accident in question. In support, he points to his own affidavit and the
affidavit of Greg Ryan, the police chief for the police department. Appellant averred in his
affidavit that, on the date in question, he was working an 8:00 a.m. to 1:00 p.m. shift for
the police department. His supervisor, Captain James Glasure, directed him to pick up
and order equipment for the police department at a store, On-Duty Equipment. Appellant
averred that he was returning to the police department after picking up and ordering the
equipment. Appellant indicated in his affidavit that he was acting in the course and scope
of his employment with the police department and operating a police department vehicle
at the time of the accident.
{¶ 10} Ryan averred in his affidavit that, based upon his personal knowledge of the
matters attested to in his affidavit, appellant was working the 8:00 a.m. to 1:00 p.m. shift
on the day of the accident; appellant was driving a police department vehicle; appellant
was directed by Glasure to pick up and order equipment from On-Duty Equipment; and,
at the time of the accident, appellant was returning to the police department after picking
up and ordering the equipment. Thus, Ryan averred, at the time of the accident, appellant
was acting in the scope of his employment with the police department.
{¶ 11} In response to appellant's motion for summary judgment, appellee relied
upon her deposition testimony. Appellee testified in her deposition that appellant was not
in uniform at the time of the accident and was driving an unmarked Chevrolet Blazer.
Appellant apologized to her and told her, "I have insurance. Do what you have to do and
definitely get it checked out." Appellant also gave her his business card. When asked
whether she had an understanding as to whether appellant was working for the police
department at the time of the accident, appellee responded, "I believe it was his day off. I
don't think he was working at the time." However, appellee stated that she would have
No. 13AP-257 5
had no reason to disagree with appellant if he claimed he was working at the time. She
also testified that she would have no reason to disagree with appellant if he testified that
he was running an errand for the police department when the accident occurred.
{¶ 12} Appellee counters that we should not consider appellant's and Ryan's
affidavits because (1) they were untimely proffered with his reply memorandum when
Civ.R. 6(C) and Loc.R. 57.02 require that affidavits be served with the motion for
summary judgment, and (2) they contain several self-serving and conclusory statements
that are not admissible as evidence for summary judgment proceedings. However,
appellee did not object to the evidence submitted by appellant in support of his motion for
summary judgment. Where a party does not object in the trial court to the introduction of
evidence submitted in support of, or in opposition to, a motion for summary judgment,
that party waives any error and, thus, cannot raise such error on appeal. Timberlake v.
Jennings, 10th Dist. No. 04AP-462, 2005-Ohio-2634, ¶ 14-15, citing Dick v. Columbus
Athenaeum, Ltd., 10th Dist. No. 00AP-121 (Dec. 5, 2000); Churchwell v. Red Roof Inns,
Inc., 10th Dist. No. 97APE08-1125 (Mar. 24, 1998). Therefore, appellee's failure to object
to the affidavits in the trial court waived any objection she may have had regarding the
documents.
{¶ 13} However, despite appellee's failure to object to the affidavits submitted by
appellant, we do not find Ryan's affidavit testimony persuasive. Affidavits submitted to
support or oppose a summary judgment motion "shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated in the affidavit." Civ.R. 56(E).
"Information in affidavits that is not based on personal knowledge and does not fall under
any of the permissible exceptions to the hearsay rule may be properly disregarded by the
trial court when granting or denying summary judgment." Cincinnati Ins. Co. v.
Thompson & Ward Leasing Co., 158 Ohio App.3d 369, 2004-Ohio-3972, ¶ 13 (10th Dist.),
citing Pond v. Carey Corp., 34 Ohio App.3d 109, 111 (10th Dist.1986). Here, Ryan's
affidavit does not appear to be based upon his personal knowledge. Ryan does not
indicate how he was aware that Glasure directed appellant to pick up and order
equipment from On-Duty Equipment or how he knew that, at the time of the accident,
appellant was returning to the police department afterwards. Ryan does not indicate he
No. 13AP-257 6
was present at the time of Glasure's order to appellant or at the time of the accident in
order to acquire such knowledge. Thus, we cannot find Ryan's affidavit supports
appellant's motion for summary judgment.
{¶ 14} Therefore, we must determine whether appellant's affidavit demonstrates
there is no genuine issue of material fact or whether appellee's deposition testimony
creates a genuine issue of material fact. After reviewing the evidence in a light most
favorable to appellee, we find appellant's affidavit demonstrates there is no genuine issue
of material fact. Appellant averred in his affidavit that he was working for the police
department, driving a vehicle owned by Madison Township, and performing a job-related
assignment at the direction of his supervisor at the time of the accident. Appellee failed to
satisfy her reciprocal burden to set forth specific facts showing there is a genuine issue for
trial. Nothing in appellee's testimony is relevant to whether appellant was actually on
duty at the time of the accident. That appellant was not in uniform and was driving an
unmarked vehicle is not indicative of whether he was in the course of his employment.
Furthermore, while we understand appellee's reason for citing her testimony that
appellant informed her after the accident that he had insurance, this fact, even if true,
would not answer the ultimate question of whether appellant was, in fact, on duty at the
time. At the time of this statement, appellant may have been unaware of his legal status
and the impact of his employment on the circumstances. Although appellee testified that
she believed it was appellant's day off and she did not think he was working at the time,
she gave no basis for her belief. Unlike appellant's testimony regarding his employment
status on the day in question, which arose from his personal knowledge of the
circumstances, appellee's "belief" regarding his employment status was not based on any
apparent knowledge of the underlying circumstances. That appellee's "belief" was without
any basis is apparent from her subsequent testimony that she had no reason to disagree
with appellant's claim that he was working and running an errand for the police
department at the time of the accident. In short, appellee failed to set forth any rebuttal
evidence to support her claim that appellant was not in the course of his employment for
the police department at the time of the accident. Thus, we find appellant demonstrated
there was no genuine issue of material fact, and reasonable minds could come to but one
conclusion when viewing the evidence most strongly in favor of appellee and that
No. 13AP-257 7
conclusion was adverse to appellee. Therefore, the trial court erred when it failed to grant
summary judgment to appellant. Appellant's assignment of error is sustained.
{¶ 15} Accordingly, appellant's single assignment of error is sustained, the
judgment of the Franklin County Court of Common Pleas is reversed, and this cause is
remanded to that court for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
SADLER, P.J., and T. BRYANT, J., concur.
T. BRYANT, J., retired of the Third Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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