IN THE SUPRF,MF. COURT OF OHIOCase No.

Appeal from the Court of AppealsNinth Appellate District

Summit County OhioCase No. 24847

GERALD SPEARS, et al.

Plaintiffs-Appellees

V.

AKRON POLICE DEPARTMENT, et al.

Defendants-Appellants

MEMORANDUM IN SUPPORT OFJURISDICTION OF DEFENDANT/APPELLANT OFFICER KEVIN KABELLAR

Cheri B. Cunningham - No. 0009433Director of Law

Michael J. Defibaugh - No. 0072683(Lead Counsel)MDefibaHgh rr akrono^Patricia Ambrose Rubright - No. 0009435PAmbarose(d>,ala•ou.ohia.^Assistant Directors of Law161 S. High Street, Suite 202Akron, Ohio 44308(330) 375-2030 FAX: (330) 375-2041

Kerry O'Brien, Esq.423 Key Building159 S. Main StreetAkron, Ohio 44308Phone: (330) 762-5500FAX: (330) 762-2011

TABLE OF CONTENTS

Page

1. EXPLANATION OF WHY TI3IS CASE IS OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION ...................... ....................................................................................................1

H. S'I'AT.EMENT OF THE CASE ANDFACTS .. ....... .......:. ......... - ......... .........4

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .......................................9

Proposition of Law No. 1: When a plaintiff contends he sustained physicalinjury from a use of force and the defendant ofl5cer denies causing injuryand objective record evidence, such as a videotape, blatantly contradictsplaintiff s testimony and does not depict a physical injury, a court should notadopt the plaintiff s version for purposes of ruling on a motion for summaryjudgment; In the absence of evidence of physical injury, reasonable mindscannot conclude that the officer exceeded the privileged use of force andacted inaliciously, in bad faith or in a wanton or reckless manner (urgingadoption of Civil Rule 56 standard enunciated in Scott v. Harris (2007), 550U.S. 372 . ................................................................................................................................9

Proposition of Law No. 2: A police officer's physical placement of a suspect on thehood of a vehicle was reasonable restraint force to control the suspect to effectuatehandcuffing where the suspect became verbally combative and attempted to leavethe scene upon being advised he was under arrest despite the fact that the suspectwas not physically abusive towards the officer; Because the officer's restraint forcewas reasonable, the use of force can not be considered malicious, in bad faith ordone in a wanton or reckless manner as a matter of law .................................................11

IV. CONCLUSION ....................................................................................................................14

V. CERTIFICATE OF SERVICE ..........................................................................................15

APPENDIX

A Gerald Spears, et aG v. Akroti Police Dept., et al. Summit County C.A. No. 24847Decision and Journal Entry

TABLE OF AUTFIORITIES

Pa9e

Anderson v. Antal (6`h Cir. 1999), 191 F.3d 451 ................................................................................12

Boxton v. Nolte, (S.D. Ohio 2007), 473 F. Supp. 2d 802 ...................................................................13

Bultenia v. Benaie County, (6`h Cir. 2005), 146 Fed. Appx. 28 .........................................................12

Champion v. Outlook Nashville, Inc. (6rt' Cir. 2004), 380 F.3d 893 ..................................................12

Edwards v. City of'tVlartinsFerry (S.D. Ohio 2008), 554 F. Supp. 2d 797 ...................... ........... ....... 12, 13

Graham v. Coruaor (1989), 490 U.S. 386, 396 ..................................................................................12

IvlcDowell v. Rogers (6lh Cir. 1988) ...................................................................................................12

Chtitlook Naslrville, Inc. (6"' Cir. 2004), 380 F.3d 893 .......................................................................10

Scott v. Harris (2007), 550 U.S. 372 .................................................................................................2, 9, 11

S'triclcland v. Tower Citv Management Corp. (Dec. 24, 1997),

Cuyahoga App. No. 71839 at "5 ...................................................................................................11, 12, 13

Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327 ..........................................................9

Untczlan v. City ofLorain (6°i Cir. 2005), 430 F.3d 312, 315 ............................................................12

Other Autlsorities:

Akron City Code §73.01(A)(1)(a) .....................................................................................................5Ohio Rules Civil Procedure 56 ..........................................................................................................9R.C. §2744.02(A) ...............................................................................................................................8R.C. §2744.02(C) ...............................................................................................................................8R.C. §2744.03(A)(6) . .........................................................................................................................8

I. EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION.

When a police officer is called upon to act in any law enforcement situation, including

using privileged force, the officer is called upon to exercise discretion. The officer rnust address

the unique circuntstances and choose a course of law enforcement action based on his or her

training and experience. In the context of arresting an individual for driving under the influence,

a police officer must evaluate whether a suspect's particular course of conduct violates the law;

decide which specific law the conduct violates; and decide whetlier the conduct requires a

custodial airest and if force is necessary to complete said arrest. These actions and thought

processes require the officer to instantly exercise professional judgment. They are therefore

quintessentially discretionary. These actions highly expose officers and municipalities to civil

lawsuits. That is why absent some ulterior motive to intentionally injm-e a suspect, the officer is

iimnune from civil liability. Any other approach would have a chilling effect on the law

enforeemerit function. The Nintli District's decision to treat a videotape that eonclusively

establishes that the arrestee was not injured durnrg the course of the an-est as simply a

coiitradictory fact to Plaintiffs after the fact witness testimony for purposes of establishing a

genuine issue of material fact for purposes of summary judgment subjects police ofGcers,

municipalities and taxpayers to a warrantless expenditure of vital monetary resources.

This case arises out of the custodial arrest of Gerald Spears for operating a motor vehicle

while under the influence of alcollol on March 24, 2007. After refiising to complete field sobriety

testing, Officer Kevin Kabellar advised Mr. Spears that he was under arrest. Mr. Spears became

verbally combative and started wallcing away from Officer Kabellar. The officer attempted to

secure Mr. Spears' left ann to apply liandcuffs. However, Mr. Spears continued to pull away.

Based on Officer Kabellar's training and experience, he grasped Mr. Spears' arm and placed Mr.

Spears on the hood ol' a vehicle for control and stabilization purposes. After being handcuffed,

Mr. Spears was placed on the devil strip to wait for a paddy wagon. Mr. Spears was evaluated

for right wrist pain by Akron Fire paran-iedics, but the paramedics saw no signs of physical

trauma. Mr. Spears was then assisted into the paddy wagon because he could not stand on his

own. Mr. Spears was then taken to Aki-on Police Deparlment's Breathalyzer Room. Mr. Spears

completed tlle mobility tests wherein the videotape of these tests clearly shows Mr. Spears with

full mobility of his hands, wrists and arms. In fact no injury is evident and Mr. Spears eomplains

ofno injury.

The Ninth District foLmd that the videotape of the mobility tests shows that Mr. Spears

freely nioved both of his hands and wrists and did not complain of any injury. (Opinion, p. 8,

App. A). But the court found that affrdavit testimony of Mr. Spears' son and wife that averred

that Mr. Spears' face was swollen and complained of wrist injury after being picked up at the

detoxification center hours after his arrest established that a genuine issue of material fact exists

as to whether Of6cer Kabellar's actions were done with a malicious purpose, in bad faith or in a

wanton or reckless mamier. (Opinion, p. 13). Treating objective evid.ence such as a videotape

the same as occurrence witiiess testimony for purposes of summary judgnient forces police

officers, political subdivision employees, political subdivisions and every other Ohio citizen to

face needless exposru-e to litigation and ignores the reality of technology and logic. For example,

if two witnesses disagree on whether a traftic light was red or green, but a videotape shows that

the light was green, tllen the videotape should conclusively establish that fact for purposes of

summary judgment.

This is precisely the approach the United States Supreme Court adopted in Scott v. Harris

(2007), 550 U.S. 372 (holding when two opposing stories are told and one story is blatantly

contradicted by the record, a court should not adopt that version of the events when ruling on

2

summary judgment). This approach is now widely utilized in federal courts across the country

and should be adopted by this Court. The archaic, ineehanical approach utilized by the Ninth

District forces Ohio citizens to engage in an extreme waste of resources to face trial.

Moreover, this case is also vitally important because the Ninth District severely limited

the actions of a police officer when faced with a noncompliant, resistive suspect. The limited act

of placing a verbally combative suspect trying to leave the scene of arrest on the hood of a

vehicle for stabilization purposes to effectuate handcuffing has not been found to rise to the level

of unreasoiiable force utider the Fourth Amendment by federal courts. However, the Nintb

District created a new "physically abusive" standard to assess a. police officer's use of force. The

Ninth District readily found that Mr. Spears was uncooperative, became verbally conibative and

began to walk away from the scene once being advised that he was under atrest, quintessential

resistive conduct. However, the Ninth District found that there is no evidence in the record that

Mr. Spears becanie physically abusive towards Officer Kabellar (Opinion, 13). This new

standard ignores the realities of police training that officers should use restraint force on

noncompliant, resistive suspects to prevent escalating the encoimter into a physical

confrontation. Police are trained to subdue a noncompliant, resistive suspect as quickly as

possible to reduce the risk of injury and bring the suspect under coiitrol and avoid the risk of

being assaulted. Thus, the Ninth District has placed police officers in the unenviable situation ot'

not using any restraint force to arrest a nonconipliant, resistive suspect until that suspcet becomes

physically abusive towards the officer. Unfortunately, as it is borne out time after time, once a

suspect becomes physically abusive towards an officer, the officei- has lost control of the aiTest

and suffers injury or even death. Furthermore, the Ninth District's new statidard will result in an

ol'ficer being found to have used reasouable force under the Fourth Amendment of the United

States Constitution, but face liability for the saine conduct under state law. That is an officer can

3

act reasonable under the Fourtli Anlendment but still face liability under state law for the same

conduct. Such an abeiTation cannot remain the law.

This case is vitally important to police officers, political subdivisions and all citizens of

Ohio because the treatment of objective evidence such as a videotape the same as occurrence

witness tcstimony for purposes of nlling on sunnnary judgment exposes all Ohio citizens to

expend resources on resolvnig the matter before a jury. Moreover, the Ninth District has

eliminated officers from using any force on a noncompliant suspect, such as Gerald Spears, until

the suspect becomes physically abusive towards the officer. This is completely at odds with

federal court Fourth Amendment precedent as well as police training. Therefore, this matter is of

a great general or public interest and involves a substantial constitutional question warranting

this Court's review.

11. STATEMENT OF THE CASE AND FACTS.

On March 24, 2007, City of Akron Firefighter/Paratnedics Greg Gearhart and Mark

Wadlington were dispatched to a motor vehicle accident in the vicinity of West Exchange Street

and Delia Avenue, Aklron, Ohio. At approximately 6:25 p.m. Defendant City of Akron Police

Officer Kevin Kabellar ("Officer Kabellar"), assigned to the Traffic Bureau, also responded to

the scene of this multiple-vehicle accident with injuries at the intersection of West Exchange

street and Delia Avenue.' Upon arrival, Appcllant Officcr Kabellar observed a three car accident.

Appellee Gerald Spears ("Gerald Spears"), the driver of a 1996 white Ford Explorer, was

tyaveliug with Iiis wife Appellee Dottie Spears ("Dottic Spears") castbound on West Exchange

Street and attempted to make a left hand tunr onto Delia Avenue. James Mittendorf, the driver

of' a 1997 white ZR-1, was traveling westbound on Exchange Street and struck the fi-ont

passenger side of Spears' vehicle. Gerald Spears' vehicle then struck a third vehicle stopped at a

1 Officer Kabellar is cun-ently a police officer with the University of Akron Police Departrnent. Officer Kabellarserved as a police officer with the City of Akron Police Depardnent from 1995-2008.

4

red light on Delia Avenue. Both airbags deployed in the Spears vehicle, striking Dottie Spears'

left knee. Immediately before this automobile accident, Gerald Spears admitted to drinking

Hennessy at his Aunt's house.

Paramedic Gearhart approached Gerald Spears who was sitting in his vehic]e. Gerald

Spears was un-cooperative with Paramedic Gearhart and did not respond to his initial inquiries.

After speaking and interacting with Gerald Spears, Paramedic Gearhart observed that Gerald

Spears had been drinking and informed an Akron Police Officer. Gerald Spears exited the

vehicle to assist his wife who was sitting in the front passenger seat.'" As Officer Kabellar

approached Gerald Spears, he obseived a strong odoi- of alcohol emanating from his person.

Gerald Spears was staggering, exhibited blood shot eyes and admitted that he had been drinking

alcohol. Initially, Gerald Spcars agreed to subinit to Field Sobriety Testing. (`2 ST"). Officer

Kabellar escorted Gerald Spears to the southeast corner of the intersection and conducted the

Hoiizontal Gaze Nystagmus ("HGN") test.3 Approximately 3 seconds into the test, Gerald

Spears stopped following Officer Kabellar's pen with his eyes and refused to continue with the

HGN test as well as any other FSTs In his deposition testin2ony, Gerald Spears states "[s]o

that's when I thirik [Kabellar] thought I was playitag with hini". At this time, Officer Kabellar

advised Gerald Spcars that he was under atrest for operating a motor vehicle while under the

influence of alcohol in violation of Akron City Code §73.01(A)(l)(a).

LJpon being advised he was under arrest, Gerald Spears became verbally conrbative and

started walking away from O1'ficer Kabellar. Officer Kabellar secured Gerald Spears' left arm in

an attempt to apply handcuffs. However, Gerald Spears continued to pull away froni Officer

Kabellar's grasp. At this point, Officer Kabellar once again grasped Gerald Spears' ai-in and

2 Gerald Spears observed dainage to the right front of the vehicle and the passenger door was jannned from Lhe

impact.3'1'he F3orizontal Gate Nystagnius is a physical test that helps detsrmine if a person is intoxicated by looking forinvoluntary jerldng of the eyes.

5

placed hini on the hood of a vehicle.a Officers are trained to place a suspect on an inunobile

solid object to stabilize the individual during handcuffing. A second officer assisted Officer

Kabellar in placing Gei-ald Spears in handcuffs.5 After being placed in handcuffs, Gerald Spears

again tricd to walk away from the officers. Due to Gerald Spears' conduct, Officer Kabellar

called for a paddy wagon in order to transport Mr. Spears to the police station. While awaiting

the paddy wagon, Officer Kabellar, with the assistance of another officer, escorted Gerald Spears

to the devil strip so that he could sit down in the grass. Once placed on the ground Gerald Spears

proceeded to lie down on his side. At this time, Gerald Spears co p1 ted that the handcuffs

were too tight. Officer Kabellar immediately responded and adjusted the handcuffs because

Gerald Spears caused the handcuffs to become tighter when he laid on his cuffed hands!)

At this point, Akron Firefigliter/Paramedics Greg Gearhart and Mark Wadlington

evaluated Gerald Spears. Gerald Spears complained that he had riglit wrist pain due to the

handcuffs. Gerald Spears' right wrist was evaluated and exhibited no signs of trauma.7 Gerald

Spears was coded a Code I by the medics which indicates that the patient can seek medical care

if he chooses to do so on his own.

Once the paddy wagon arrived, Officers Dyer and Kabellar escorted Gerald Spears to the

rear of the wagon. Due to Gerald Spears having difficulty standing on his feet, Officer Kabellar

assisted him into the wagon by holding onto his upper arms. Gerald Spears readily admits during

his deposition the difficulties he had standing. Once in the paddy wagon, Gerald Spears refused

to sit on the beneh so the officers laid him on his side to properly breathe as well as to prevent

4 During Gerald Spears' deposition he initially stated that Officer Kabellar "slammed" his face against the hood of acruiser However, Gerald Spears then reti-eats from this ececntric testitnony and adntits that Kabellar grabbed himby his left arni and placed him on the hood of a cruiser.5 As Gerald Spears ivas placed on the hood of a car, Dottie Spears was engaged in a conversation with a femaleofficer. Dottie Spears admits she has no idea what occurred between her husband and Officer Kabellar,6 Dottie Spears is not aware if Akron Police Officers adjusted the handcuffs. At this point in tiine, Dottie Spcarswas taken home by an Akron Police Officer.7 Curiously, Gerald Spears clainis that he was not treated by LMS. Gerald Spears is also now contending thatOfficer Kabellar injured his left wrist.

6

the handcuffs from tightening. (MSJ, Kabellar Aff., ¶8). Officer Kabellar then confmned Gerald

Spears had been medically evaluated by the paramedics and did not require any emergency

medical treatment before being hansported to the station. (MSJ, Kabellar Aff., ¶9). At no time

did Gerald Spears complain to Officer Kabellar about needing medical assistance.

Once at the Akron police station, Gerald Spears was taken to the Breathalyzer Room (BA

Room). Officer Kabellar and Sgt. Michael Vavro, a certified breathalyzer operator, were present

along with Gerald Spears g Gerald Spears refused the breathalyzer test, but did participate in the

mobility tests.9 During the entire period, Sgt. Vavro clearly observed Gerald Spears' speech,

physical appearance and mobility. Sgt. Vavro observed Gerald Spears freely move both his

hands, wrists and arms. At no time did Gerald Spears indicate that his wrists were injured nor

did he claim any other injuries. In fact, the niobility tests were captured on videotape and

likewise show no injui-ies to Mr. Spears.

Once the testing phase was completed, Gerald Spears was read his Miranda rights. As

Sgt. Vavro read these rights, Gerald Spears continually stated that he did not understand liis

rights and refnsed to answer any questions. Gerald Spears was then transported to the

detoxification center.

Gerald Spears' son picked him up at the detoxification center. Then, they went to Akron

General Medical Center to see Dottie Spears. Gerald Spears arrived at the hospital just as his

wife was leaving. Gerald Spears did not seek any medical attention from the hospital and simply

went home with his wife. Gerald Spears "thinks" he called his personal doctor the following

8 As a breathalyzer operator, Officer Vavro conducts breath tests on individuals suspected of driving under theinfluence of alcohol. Additionally, Officer Vavro conducts physical mobility tests at the Alaon Police Station. The

breatlialyzer and all mobility tests are recorded.9 If an individnal displays any physical injury or complains about any physical impairnieut, Officer Vavro does not

conduct mobility tests.

7

Monday regarding his left wrist and facial injury.10 Gerald Spears saw a hand specialist on May

22, 2007, and received surgei-y on his wrist in August of 2007.

Gerald Spears was convicted of operating a motor vehicle while under 11ze inftuence of

alcohol. He filed the instant action alleging assault, battery, intentional and reckless infliction of

emotional distress against the Ala-on Police Department, City of Akron, and Officer Kabellar.

Dottie Spears alleges a derivative Loss of Consortium claim.

Gerald and Dottie Spears filed this action on Mai-ch 21, 2008, in the Summit County

Court of Common Pleas against the Akron Police Department ("APD"), the City of Akron

("City") and Officer Kevin Kabellar. Gerald Spears alleged that OfGcer Kabellar committed

assault, battery, intentional and reckless infliction of emotional distress as a result of his arrest on

March 24, 2007. Gerald Spears also alleged these same claims against the APD and the City.

Dottie Spears alleged a derivative Loss of Consortium claim. The City and Officer Kabellar

ftled an answer denying Spears' claims and asserting immunity pursuant to R.C. §2744.02(A)

and R.C. §2744.03(A)(6). Defendant APD answered and alleged that it was not suijuris.

On May 11, 2009, the APD, City and Officer Kabellar filed their Motion for Summary

Judgment. On May 26, 2009, the Spears filed their Memorandum in Opposition and the APD,

City and Officer Kabellar filed tlleir Reply on May 29, 2009.

On June 10, 2009, the trial court granted the Motion for Sununary Judgment in favor of

the APD on all claims and granted judgment in favor ofthe City and Officer Kabellar on Gerald

Spears' intentional and reckless infliction of etnotional distress clainis. The Trial Court denied

Summary Judgment on the assault, battery and loss of consortium claims against the City and

Officer Kabellar. Pursuant to R.C. §2744.02(C), the City and Officer Kabellar appealed the trial

court's denial of itnmunity to this Court. 1'he Ninth District dismissed the City oi' Alcron, but

10 Gerald Spears had surgery on his left wrist several years ago due to a gunshot wound. Spears had scar tissue icomthe bnllet wound and particles of the bullet renzain in his wrist.

8

ruled that genuine issues of material fact exist relating to officer Kabellar's assertion of

immunity.

11I. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW.

Proposition of Law No. 1: When a plaintiff contends he sustained physicalinjury from a use of force and the defendant-officer denies causing injuryand objective record evidence, such as a videotape, blatantly contradictsplaintiff s testimony and does not depict a physical injury, a court should uotadopt the plaintiff's version for purposes of ruling on a motion for summaryjudgment; In the absence of evidence of physical injury, reasonable mindscannot conclude that the officer exceeded the privileged use of force andacted maliciously, in bad faith or in a wanton or reckless manner (urgingadoption of Civil Rule 56 standard enunciated in Scott v. Harris (2007), 550U.S. 372.

Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, summary judgment is proper

if:

(1) No genuine issue as to any material fact reniains to be litigated; (2) themoving party is entitled to judgment as a matter of law; and (3) it appears fromthe evidence that reasonable minds can come to but one conclusiou, and viewingsuch evidence niost strongly in favor of the party against whom the inotion forsummary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327.

Mr. Spears' allegation that Officer Kabellar's actions were malicious, in bad faith or in a

reckless or wanton manner is based on the fact that the officer's actions allegedly caused Mr.

Spears ati injury to his left wrist and face. In applying Ohio's Rule 56 standard, the Ninth

District found the following record evidence:

The video of the mobility tests confirms the officers' affidavits that Mr.Spears did not complain of pain or injury during the mobility testing andthat he did not appear to have any trouble inoving his hands and wrists.

The EMS rnn report finding that Mr. Spears did not suffer any physicaltraurna after being evaluated on scene.

Affidavits from Mrs. Spears and Mr. Spcars' son stating that Mr. Spears'face was swollen and complained of wrist pain after leaving thedetoxification center hours after his airest.

9

Affidavit from Mr. Spears' doctor that Mr. Spears' wtist injury wascaused by being placcd in handcuffs and in a police vehicle.

(Opinion, p. 7, 13, 14).

The Ninth District held "[t]here is sufficient evidence to conclude that there is a genuine

issue of material fact concerning whether Officer Kabellar's actions were done with a`malieious

purpose, in bad faitli, or in a wanton or reckless manner"' (Opinion, p. 13). However, the legal

standard for malicious purpose, bad faith, wanton and reckless contemplate that an injury

occurred. In finding a genuine issue of material fact, the Ninth District treated objective

evidence (video tape and EMS report) on the saine plane with after occurrence witness

tcstimony. This archaic approach defies the technology now present and is simply illogical. In

addressing this very issue before this Court, the United States Supreme Court in Scott v. Harris

(2007), 550 U.S. 372, 380-81 recently enunciated a logical Rule 56 standard when dealing with

objective evidence sucli as a videotape:

When opposing parties tell two different stories, one of whicli is blatantlycontradicted by the record, so that no reasonable jury could believe it, a courtshould not adopt that version of the facts for purposes of ruling on a motion forsuinmary judgment.

That was the case here with regard to the factual issue whether respondent wasdriving in such fashion to endanger human life. Respondent's version of events isso utterly discredited by the record that no reasonable jury could have believedhiin. The Court of Appeals should not have relied on such visible fiction; itshould have viewed the facts in the light depicted by the videotape.

Officer Kabellar urges this Court to adopt the Scott standard when ruling on summary

judgrnent motions in Ohio. This standard is widely followed in fcderal courts across the country

and should be adopted in Ohio. When objective evidence shows that Mr. Spears did not suffer an

injury during his arrest, it is illogical to suggest a genuine issue of material fact exists because a

Plaintiff proffers an after the fact nay saying affidavit. Did Mr. Spears coniplain of wrist pain

10

and havc a swollen face wlren picked up several hours later at the detoxification center? It is

certainly possible! However, he could have been in a figlit, fallen or a myriad of other thuigs

could have caused these injuries at the detoxification center or elsewhere. But what objective

evidence (videotape and EMS run report) does show is that Officer Kabellar did not cause these

injuries. It is illogical to force Officer Kabellar to stand trial when a reliable videotape shows

Mr. Spears with full mobility of his wrists and an absence of any complaints or signs of injury.

In adopting the Scott standard, reasonable minds could only conclude that Officer

Kabellar's actions were not malicious, done in bad faith or in a wauton or i-eckless maimer as

objective evidence shows that Mr. Spears did not suffer any injury from Kabellar's actions.

Accordingly, Officer Kabellar urges this Court to adopt the logical Rule 56 standard in Scott.

Proposition of Law No. 2: A police officer's physical placement of a suspecton the hood of a vehicle was reasonable restraint force to control the suspectto effectuate handcuffing where the suspect became verbally combative andattempted to leave the scene upon being advised he was under arrest despitethe fact that the suspect was not physically abusive towards the officer;Because the officer's restraint force was reasonable, the use of force can notbe considered malicious, in bad faith or done in a wanton or reckless manneras a inattsr of law.

The Ninth District found:

While Mr. Spears does not deny being uncooperative, he explained in hisdeposition tbat lie told Officer Kabellar that he could not continue with the fieldsobriety testing due to a prior neck injm-y. Officer Kabellar indicated that whenMr. Spears refused to further participate in the testing he placed Mr. Spears underarrest. This is allegedly when Mr. Spears "beeame verbally cornbative and startedwalking away." Mr. Spears does not deny this. Nonetheless, there is notestimony in the record indicating that Mr. Spears ever became physically abusivetowards Officer Kabellar.

This "physically abusive" standard defies clearly established law under the Fourth

Arnendment of the United States Constitution as interpreted by Uivted States Supreme Court, the

Sixth Circrut Court of Appeals and Ohio case law. A police officer has a privilege to use

reasonable restraint force to effect an arrest. Strickland v. Tower City Management Corp. (Dec.

11

24, 1997), Cuyahoga App. No. 71839 at *5. In assessing reasonable force, Ohio courts look to

principles established by the United States Supreme Court, but Ohio affords officers greater

protections when the officer acts in good faith. Id. The United States Supreme Court has

specifically rejected the "wisdom of hindsigllt" approach. "The `reasonableness' of a particular

use of force must be judged from the perspective of a reasonable officer on the scene, rathcr than

with the 20/20 vision of hindsight." Graharn v. Connor (1989), 490 U.S. 386, 396. "Not every

push or shove, even if it may later seein unneeessary in the peace of a judge's chanibers, violates

the Fourth Ainendment." Un.talan v. City of Lorain (6th Cir. 2005), 430 F.3d 312, 315 (citing

Grctham, 490 U.S. at 396,-397).

It is clearly established law in the Sixth Circuit that a totally gratuitous application of

force is unreasonable. McDowell v. Rogers (6`h Cir. 1988). Courts have defined the particular

contours of the iight to be that force is "totally gratuitous" when applied after the suspect is

incapable of being a danger to the officers or others, i.e. handcuffed and hobbled (Champion v.

Outlook Nashville, Inc. (6t' Cir. 2004), 380 F.3d 893 or applied beyond a marked moment when

there is a discernable cessation of any resistive or non-compliant action by the suspect (Bultema

v. Benzie County, (6'h Cir. 2005), 146 Fed. Appx. 28). Thus, the key analysis is wlrether the

suspect is resisting the officer's efforts to gain control and arrest the suspect. There is no legal

requirement for an officer to first be assaulted before privileged force may be used."

For exaniple, a single, brief and limited act of placing Gerald Spears, an uncooperative

suspect, on the hood of the cntiser (or any stationary object) for control purposes, does not rise to

the level of an unreasonable use of force. Anderson v. Antal (6"' Cir. 1999), 191 F.3d 451

(finding an officer's action of forcibly removing an uncooperative individuat from a vehicle and

forcibly placing the individual against a cruiser to effectuate handcuffing reasonable); Edwards

11 The Sixth Circuit is the cotttrolling circuit for Officer Kabellar and all other officers in Ohio.

12

v. City of Dllartins Ferry (S.D. Ohio 2008), 554 F. Supp. 2d 797 (finding an officer's actions of

"slamming" an uncooperative eighty-two year old individual against the cruiser and deploying a

one-second taser application reasonable); Boxton v. Nolte, (S.D. Ohio 2007), 473 F. Supp. 2d

802 (finding an officer's actions of pushing an uncooperative suspect's head against a wall

resalting in a minor eut reasonable where officer needed to hold suspect in place to conduct a pat

down search; the court noted that the minimal injury indicated that the forec was reasonable);

Strickland v. Tower City Management Corp., supra (find'nig that officer's actions of slamming an

uncooperative suspect against a wall to effectuate search reasonable under state law).

Although the Ninth District tse11' described Mr. Spears' conduct to be uncooperative and

resistive when he became verbally combative and attempted to walk away from the scenc once

being advised he was under arTest, the court found that Officer Kabellar could not use restraint

force to effect the a.izest because he was not physically assaulted. This is now the state of the law

in the Ninth District and said holding will place officers in peril if they must wait to be

pliysically abused before using force. After all, the whole point of an officer using force to

control a suspect is to prevent the officer from being assaulted. Clearly established law pennits

officers to use reasonable force to control a noncompliant, resistive suspect. Whether that suspect

is physically abusive towards an officer is not a legal threshold adopted by federal courts and

should not be the law in Ohio. The critical analysis is whetller force must be used to control and

subdue a resistive, noncompliant suspect. Certainly, Mr. Spears' actions of becoming verbally

abusive and walking away from the officer and not subniitting to Officer Kabellar, is

quintessential resistive behavior. Officer Kabellar urges this Court to talce.lurisdiction of this

proposition of law to clarify the legal standards of when an officer may use privileged force to

control an uncooperative suspect.

13

IV. CONCLUSION.

This Honorable Court should accept jurisdiction of botlr propositions of law.

Respectfitlly submitted,

Cheri B. Canningham - No. 0009433Director of Law

Michael J. DefibWgh hI . 007260MDefit) augh@ak ronohio.govPatricia Ambrose Rubri ght - No. 0009435PAmbroseCci),akronohio. ovAssistant Directors of Law161 S. High Street, Suite 202Akron, Ohio 44308(330) 375-2030 FAX: (330) 375-2041

14

CERTIFICATE OF SERVICE

This is to certify that a true and accurate copy of the foregoing Memoraaidum In Support

of Jurisdiction of Defendant/Appellant Officer Kevin Kabellar was served this 5`h day of April,

2010 by dcpositing same in first-class United States mail, postage prepaid, to the following:

Kerry M. O'Brien, Esquire423 Key Building159 S. Main StreetAkron, Oliio 44308

15

STATE OF OHIO

COUNTY OF SUMMIT

GERALD SPEARS, et a1.

Appellees

v.

AKRON POLICE DEPARTMENT, et al.

Appellants

fN THE COURT OF APPEALSJNINTE JUDICIAL DISTRICT

YoC.. A. No. 24847

APPEAL FROM JUDGMENTEN'TERED IN THECOURT OF COMMON PLEASCOUN'TY OF SUMMIT, OHIOCASE No. CV 2008-03-2421

DECISION AND JOURNAL ENTRY

Dated: February 24, 2010

MOORE, Judge.

{¶1} Appellants, City of Akron ("City") and Kevin Kabellar ("Officer Kabellar"),

appeal the ruling of Summit Cotmty Court of Common Pleas which denicd in part their summary

judgment motion based upon sovereigii irmnunity. For reasons set forth below, we affizn in part

and reverse in part.

1.

{$Zr Appellee, Gerald Spears, and his wife, Appellee, Dottie Spears, were involved in

a niulti-vehicle automobile accident on Friday March 24, 2007. Mr. Spears was the drivcr. He

had a couple of drinks at Ihis Aimt's house prior the accident. Paramedics and police were

dispatched to the scene. The paramedie who responded to ttie Spears' vehicle noted that Mr.

Spears was uncooperative and "observed that [Mr. Spears] had been drinking[.]" Officer

Kabcllar "observed a strong odor of alcohol about [Mr. Spears'] person [andI also observed Mr.

Spears staggeiing and his eyes were bloodshot."

APPENDIX A

2

{13} Officer Kabellai- administered field sobrioty tests to Mr. Spears. Mr. Spea.rs did

not complete all of the tests and the officer placcd him under au-est. The parties hold different

views of what took place during the process of airesting and transporting Mr. Spears to thc

police station. Mr. Spears alleged that Officer Kabcllar's actions resulted in an injury to his left

vva-ist. The police took Mrs. Spears bonre and Mrs. Spears had her daughter take her to the

hospital. At the police station, Mr. Spears participated in the mobility tests, but refused to take a

Breathalyzer test. Mr. Spears was then taken to the detoxification center and was later picked up

there by his scin and taken to the hospital to meet his wife. Mr. Spears contacted his physician

concerning the injury to his left wrist that Monday. The physician refen-ed Mr. Spears to a hand

specialist who initiated conservative tieatment; however, ultimately Mr. Spears was required to

undergo surgery.

{94} Mr. and Mrs. Spears filed a five-count complaint against the Akron Police

Department, the City, Officer Kabellar and a 7olin Doe Of'ficcr for (1) assault - excessive force,

(2) battery - excessive force; (3) intentional infliction of emotional distress; (4) reckless

infliction of emotional distress; tuid (5) loss of consortium. The City, Akron Police Department,

and Officer Kabellar moved for summary judgment on all claims based primarily upon sovereign

inuinu7ity. The trial court granted the rnotion as to the Alcron Police Departinent, finding that as

an entity it was not capable of being sued. The trial court also granted summary judgment as to

the Spears' claim for intentional infliction of emotional distress.i The trial court denied the

motion witl7 respect to the claims against the City and Officer Kabellar for assault and battery

1 The trial court did not specifically rule on the claim for reckless infliction of emotional

distress.

3

and with respect to Mrs. Spears' claim for loss of corisortium. The City and Ollicer Kabellar

have timely appealed, raising three assignments of error for our review.

IT.

ASSIGNMENT OR ERROR I

"THE TRIAL COt7RT ERRED IN NOT GRANTING IMMUNi1'Y TO THECITY OF AKRON PURSllANT TO R.C. []2744.02(A) FOR TI-IEINTENTIONAL TORT CLAIMS OF ASSAULT AND SATTERY[.]"

{95} The City argues that the trial court erred by denying the City's motion for

summary judgment on the claims of assault and battery, as the City is immune pursuant to R.C.

2744.02(A). We agree.

{¶6} Initially we note that "when a trial court denies a motion in which a political

subdivision or its eniployee seeks iim iunity under R.C. Chapter 2744, that order denies the

benefit of an alleged immunity and th'us is a final, appealable order pursuant to R.C.

2744.02(C)." Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, at T127.

{1[7} This Court reviews an order rulnig on a motion for summary judgment de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the

trial court, viewing the facts of the case in the light most favorabl.e to the non-moving paity and

resolving any doubt in favor of the non-moving party. Vioclc v. Stowe-YYoodivard Co. (1983), 13

Ohio App.3d 7, 12.

18) Pursuant to Civil Rule 56(C), summary judgment is proper if:

"(1) No genuine issue as to any material fact remains to be litigated; (2) themoving party is entitled to judgment as a matter of law; and (3) it appears fromthe evidence that reasonable niinds can come to but one conclusion, and viewingsuch evidence most strongly in favor of the party against whom the motion forsunmlary judgment is rnade, that conclusion is adverse to that party." Tenaple v.

Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

4

{q(9} The party inoviug fbr summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of'the record that show the absence of

a genuine issue of material fact. Dresher v, Burt (1996), 75 Ohio St.3d 280, 292-93.

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving partv

bears the bui-den of offering specific facts to show a genuinc issue for trial. Id. at 293. The

nonmovingparty may not rest. upon the mere allegations and denials in the pleadings but instead

nnzst point to or submit some cvidentiary material that demonstrates a genuine dispute over a

material fact. Henkle v. Iien.kle (1991), 75 Ohio App.3d 732, 735.

{^(10} In order to detemiine whether a political subdivision is itninune from liability, we

engage in a three-tiered analysis. Cater v. City of C'leveZand (1998), 83 Ohio St.3d 24, 28. '1'he

first tier sets forth the prernise that:

"[e}xcept as provided in division (B) of this section, a political subdivision is notliable in damages in a civil action for injury, death, or loss to person or propertyallegedly caused by an act or omission of the political subdivision or an employeeof the political subdivision in comlection with a governmental or proprietary

function." R.C. 2744.02(A)(1).

Putsuant to the second tier, we detennine whether one of the five exceptions to inununity

outlined in R.C. 2744.02(B) applies to hold the political subdivision liable for damages. Cater,

83 Ohio St.3d at 28. Lastly, immunity may be restored, and the political subdivision will not be

liable, if one of the defenses enuznerated in R.C. 2744.03(A) applies. Id.

{¶11} Here the City argued in its motion for suminary judginent that the City was

imrnune pursuant to R.C. 2744.02(A), as the provision of police services was a governrnental

function, and that none of the exceptions found in R.C. 2744.02(B) was applicable. Mr. and

Mrs. Spears made no argument in response with respect to the immunity of the City. The trial

court denied the City immunity, concl uding that while "[Mr. Spears] has not identified any of the

above exceptions [to immunity] as being applicable in this case[,] [] [Mr. Spears] claims that

Officer Kabellar, au employee of the City of Alcron is liable. If [] Officer Kabeliar is liable, then

the City may be as well." We disagree.

"Chapter 2744 of the Ohio Revised Code grants immunity to politicalsubdi.visions for injuries caused by any act or omission unless an exceptionapplies. R.C. 2744.02(A)(l). The City of Akron is a political subdivision uriderChapter 2744. R.C. 2744.01(F). The exceptions to political subdivisioninunuivtyinclude, in general terms: (1)the negligent operation of a motorvehicle; (2) the negligent performanice oCproprietary functions; (3) the negligentfailure to maintain public roads; (4) negligence on the grounds of a publicbuilding; and (5) liability that is expressly imposed by statute. R.C.2744.02(B)(l)-(5)." Watson v. Akron, 9th Dist. No. 24077, 2008-Ohio-4995, at

¶12.

"The provision or nonprovision of police *** services or protection" is a govemmental funetion,

R.C. 2744.01(C)(2)(a), and therefore pursuant to R.C. 2744.02(A)(1), the City is entitled to

immunity for the provision of such services, absent an exception. See, also, fG'eibel v. Akron

(May 8, 1991), 9th Dist. No. 14878, at *1. As pointed out by the City, "[i]n Ohio, a politica.l

subdivision may not be held liable for intentional torts unless `liability is expressly imposed upon

the political subdivision by a section of the Revised Code."' Watson at 1114, quoting R.C.

2774.02(B)(5). Mr. Spears did not argue in the trial court, and does not argue here, that any of

the above-listed exceptions applies to his case. In fact, Mr. Spears provided no arg.unent

refuting the City's contention that it was entitled to immunity. Tlierefore, the trial court erred in

denying the City's motion for summary judgivent pertaining to Mr. Spears' claims for assault

and battery.

ASSIGNMENT OF ERROR II

"THE TRIAL COURT ERRED IN NO'I' GRANTING IMMUNITY TOOFFICER KEVIN K-NBELLAR PURSUANT TO R.C. []2744.03(A)(6) FOR'1iIE INTF_NTIONAL TORT CLAIMS OF ASSAULT AND BATTERY."

6

{1112} The City and Officer Kabellar argue that Officer Kabellar was entitled to the

benefits of' immunity, and that the ti^al court eiTed in denying their motion for suimnar-,y

judgment. Specifically, the City and Officer Kabellar argue that Mr. Spears has not provided

evidence that Officer Kabellar acted "with malicious purpose, in bad faith, or in a wanton or

recldess manner." R-C. 2744.03(A)(6)(b). Mr, and Mrs. Spears contend the opposite is true.

Issues regarding malice, bad faith, recklessness and wanton conduct are generally questions le$

to thejury to resolve. SAadoan v. Sumnzit Cty. Children Servs. Bd., 9th Dist. No. 21486, 2003-

Ohio-5775, at9114.

{9113} The three-tiered analysis of liability applicable to a political subdivision does not

apply when deterniining whether an employee of the political subdivision will be liable for harm

caused to an individual. Cramer v. Auglaize Acres, I13 Ohio St.3d 266, 2007-Ohio-1946, at

'][17. Pursuant to R.C. 2744.03(A)(6), an employee of a political subdivision is immune fronz

liability unless:

"(a) The employee's acts or ornissions wer-e manifestly outside the scope of theemployee's employment or official responsibilities;

"(b) The einployee's acts or onvssions were with malicious purpose, in bad faith,or in a wanton or reckless matmer;

"(c) Civil liability is expressly imposed upon the employee by a section of theRevised Code. Civil liability shall not be construed to exist under another sectionof the Revised Code merely because that section imposes a responsibility ormandatory duty upon an employee, because tllat section provides for a criminalperialty, because of a. general authorization in that section that an employee maysue and be sued, or because the section uses the tezna `shall' in a provisionpertaining to an employee."

{1[14} The issue before us is whether there remains a genuine issue of material fact

conceming Officer Kabellar's actions with respect to Mr. Spears. The City and Officer Kabellar

maintain that there is no evidence that Of6cer Kabellar acted with a "malicious purpose, in bad

faith, or in a wanton oi- reckless manner[.1" R.C. 2744.03(A)(6)(b).

iI[l5} One acts with a inalicious purpose if one willfiilly and intentionally acts with a

purpose to cause harm. Piro v. Fr-anklin Twp. (1995), 102 Ohio App.3d 130, 139. Malice

includes "the willful and int.entional desig.i to do injury, or the intention or desire to harm

another through conduct which is unlawful or unjustified." (Internal quotations omitted.)

Shadoan at 112. Bad faith is defined as a"dishonest purpose, moral obliquity, conscious

wrongdoing, or breach of a known duty through some ulterior motive or ill will." (Internal

quotations and citations omitted.) Lindsey v. Sunarnit Cty. Childr-en Services Bd.; 9th Dist. No.

24352, 2009-Ohio-2457, at ¶16. A person acts wantonly if that person acts with a complete

"failure to exercise any care whatsoever." Fabrey v. McDonald Police Dept. (1994), 70 Ohio

St.3d 351, 356. One acts recklessly if one is awai-e that one's conduct "creates an unreasonable

risk of physical harm to another[.]" (Iritemal quotations and citation oznitted.) Thornpson v.

McNeill (1990), 53 Ohio St.3d 102, 104. Recklessness is more than mere negligence in that the

person "must be conscious that his [or her] cotiduet will in all probability result in injury."

Fa.brev, 70 Ohio St.3d at 356.

{¶16} We conclude there remains a genuine issue of material fact concerning Officer

Kabellar's conduct, and thus the trial court did not err in denying Officer ICabeliar the benefit of

inununity. Officer Kabellar's and Mr. and Mrs. Spears' version of the events differ to a

significant extent on several irnportant facts. I'he City and Officer Kabellar presented the

following evidence in support of their motion: portions of the deposition testimony of Mr. and

Mrs. Spears, the affidavit of the paramedic, along with his report, the affidavit of Officer

Kabellar, along with his report, and the affidavit of the officer u=ho condLicted the mobility tests

at the police station, along with the video recording of that testing.

8

{9117) The paramedic who treated both Mr. and Mrs. Spears stated in his affidavit that

Mr. Spears was uncooperative, did not conlply with the commands o^P Office Kabellar, and had

been drinking. Officer Kabellar stated in his affidavit that Mr. Spears initially was compliant in

completing the field sobriety testing. However, shortly into the testing, Mr. Spears refused to

continue with the testing. When Officer Kabellar placed Mr. Spears under arrest "he became

verbally combative and started walking away." Officer IKabellar, "[b]ased on [his] training and

expeieuce; [] grasped Mr. Spears' atni and placed him on the hood of a vehicle in order to

control his person to effectuate handcuffing." Officer Kabellar's affidavit further provided that:

"[w]hile waiting on the wagon, myself and another officer escorted Mr. Spears tothe devil strip so that he could sit down on the ga-ass. Mr. Spears then proceededto lay down on his side. At this time, Mr. Spears complained that the handcuffswere too tight. I immediately respondad and adjusted the handcuffs as Mr. Spearscaused the handcuffs to tighten when he laid down.

"[] Oiice the wagon anived, Officer Dyer and myself escorted Mr. Spears to therear and attempted to help him in the compartment of the wagon. Since Mr.Spears was having difficulty standing, I assisted him into the wagon by holdingonto his upper amrs. Mr. Spears refused to sit on the bench so we laid liim on thefloor. We determined to place[] hirn on his side so that he could breath[e]properly and the handcufPs would not tighten."

According to Officer Kabellar, at no time did Mr. Spears complain of an injury. Mr. Spears was

able to fully participate in the mobility testing and was able to move both arms and wrists fi-eely,

which is confir-med by the officer who conducted the mobility tests aud by the video of that

testing. 'lhe paramedic further provided that Mr. Speais indicated he had right wrist pain due to

the handcuffs. The paramedic examine(I Mr. Spears' right wrist and found no signs of trauma.

{1118} The video of the rnobility testing confirms the officers' affidavits that Mr. Spears

did not complain of pain or injury during the mobility testing and that he did not appear to have

any trouble moving his hands and wrists.

9

{$19} Mr, and Mrs. Spears' deposition testimony, also subinitted by the City and Officei-

Kabellar, portrays the events in a different light. Mr. Spears tcstified that he told Officer

Kabellar that he could not continue with the field sobriety testing due to a previous neck injury.

Mr. Spears believed Officer Kabellar then thought Mr. Spears "was playing with him[]" as

Officer Kabellar then "grabbed [Mr. Spears] by the nape of [his] neck, left hand, slanuned [his]

face against the police cruiser[.]" According to Mr. Spears after the officers put the handcuffs

on, the offieers"dragg[ed]" Mr. Spears and "laid [him] in the grass[.]" Mr. Spears stated that his

wife asked why the officers were treating him like that and Mr. Spears said that Officer Kabellar

told his wife to "[s]hut up" or he would take lier to jail. Mr. Spears alleged that he i-epeatedly

complained about the handcuffs being too tight but it was never resolved. Mr. Spears stated that

when the officers "helped [him] get up in the paddy wagon [he] heard [his wrist] snap." The

Officers "piolced [him] up" because "[he] couldn't get up in [the paddy wagon]" and laid Mr.

Spears on the floor of the "paddy wagon." Mr. Spears indicated that his face became swollen

and his left wrist was painful.

{11201 Mrs. Spea-s testified in her deposition that the officers "took IMr. Spears] and

threw him on top of the cruiser and then they put handcuffs on him and threw him over on the

sidewalk in the grass." Mrs. Spears deinanded to know why thcy were treating Mr. Spears in

that manner. Mrs. Spears confirmed that her husband was complaining that the handcuffs were

too tight and confiinied Mr. Spears' version of events indicating that the officers did not remedy

the situation. Mrs. Spears, however, did not observe the officers' interaction with Mr. Spears

when he was being put in the "paddy wagon."

{l[21} In response to the City's and Officer Kabellar's motion, Mr. and Mrs. Spears

submitted their own aftidavits, the affidavit of Mr. Spears' son who picked Mr. Spears up fi-om

10

the detoxiiication center, and an affidavit a.nd aceoinpanying lette- of Mr. Speal-s' treati

physician.

{¶22} In his affidavit Mr. Spears stated that he

"performed the standard roadside tests for Officer Kabellar and then [Oi'GcerKabellar] became irritated with [him] and grabbed [his] left hand and wrist andput it behnid [his] back while taking [the Officer's] other hand and putting it onthe back of [Mr. Spears'] neck and slam[ing] [Mr. Spears'] face on to the hood of[the Officer's] cruiser. [Officer Kabellar] along with another officer then took[Mr. Spears'] other hand and put it behind [his] back and haudcuffed [him] andtlnew [him] on the grass[.]„

With respect to the officers' conduct in putting Mr. Spears in the "paddy wagon," Mr. Spears'

affidavit provides that he "was dragged by [his] arms handcuffed behind [him]" and that he "was

screaming in pain all the while the police di-agged [him] to i.he w•agon, and then [he] heard a snap

come from (his] Ieft wrist as they tlu-ew [him] in to the wagon."

{9123} The City and Ot'ficer Kabellar argued in the trial court and on appeal that Mr.

Spears' affidavit contradicts his prcvious deposition and that Mr. Spears does not remedy that

inconsistency within his affidavit. We agree.

{Iff24} "`[A]n affidavit of a party opposing [sununary] judgtnent that contradicts former

deposition testimony of that party inay not, without sufficient explanation, create a genuine issue

of material fact to defeat a motion for sununary judgment.' Byrd v. Smith, 110 Ohio St.3d 24, []

2006-Ohio-3455, at 9[28. F'urtlrer `[a] nomnoving party's contradictory affidavit must sufficiently

explain the contradiction before a genuine issue of material fact is created.' Id. at ¶29."

Fir-stMerit Bmrk v. Angelori, 9th Dist. No. 08CA0033-M, 2008-Ohio-6740, at ¶15.

{¶25} To the extent that Mr. Spears in his affidavit describes that the officers "threw"

him on the grass, it contradicts his prior deposition testimony dtuing which he indicated that the

officers "laid" hini in the grass. Further, Mr. Spears' deposition testimony concerning the

11

officers' actions in escorting Mr. Spears to the "paddy wagon" is devoid of any inclication that

the Officers' actions were violent or forceful, and Mr. Spears makes no mention in his deposition

of "screa ning ir p, [.]" As Mr. Spears offers no explanation for the apparent contradiction

between his deposition testimony aizd that provided in the affidavit, we conchide that it does not

establish a genuine issue of mateiial fact. Id. Further, to the exteist that the trial court in its

decision relied on portions of the affidavit contradicted by piior deposition testimony, it was

error to do so. Nonetheless, we detennine that the triai court still came to the correct result.

"[W]e have consistently held that `I a]n appellate court shall affinn a trial court's judgment that is

legally correct on other grounds, that is, onc that achieves the right result for the wrong reason,

because such an error is not prejudicial."' Lindsey at ^, 12, quoting, In s•e Estate of Baker, 9th

Dist. No. 07CA009113, 2007-Ohio-6549, at 1[l5.

{126} Mrs. Spears' affidavit confinns much of her deposition testimony, as well as her

husband's deposition testimony. She stated that she "witnessed [her] husband perform roadside

tests *** when the police officer became irritated and slanirned [her] husband's face on to the top

of the cruiser. The police then put his hands behind hnn, handcuffed him, and threw hitn on to

the grassy strip next to the street[.]"

{¶27} Thc City and Offieer Kabellar also arg-ue that to the extent that Mr. ancl Mrs.

Spears state in their affidavits that Officer Kabellar was "irritated" witli Mr. Spears that such

contradicts thcir deposition testimony and/or constitutes improper Civ.R. 56 evidenee as it is

outside their personal knowledge. We disa}ee.

{$28} Given the circumstances as described by Mr. and Mrs. Spears in their depositions

it is a reasonable inference to conclude that Oftice- Kabellar was, or appeared to be, irritated.

Mr. Spears indicated in his deposition that when lie told Officer Kabellar that he could not

12

continue with the field sobriety testing, he believed Officer Kabellar thought Mr. Spears "was

playing with him." Mr. Spears did not state that he was in fact "playiirg" with Officer Kabellar.

Following that, Mr. Spears claimed that Officei- Kabellar grabbed Mr. Spears and slammed his

face into the cruiser. Mrs. Spears stated in her deposition that Officer Kabellar "threw" her

husband onto the cruiser_ She indicated that she did not know why Officer KabeIlar was 1:reating

her husband in that manrier. 1'hus, despite the fact that Mr. and Mrs. Spears could not have

personal knowledge as to Officer Kabellar's rnerrtalstate, as they both witnessed the events, they

could perceive the circumstances andmake inferences based upon theni. The Spears' conclusion

in their affidavits that Officer Kabellar was itritated essentially supplements their deposition

testimony, and does not contradict it. Further, we caimot conclude that it was improper

testimon,y. As has been repeatedly acknowledged in the criminal context, mental state "»aust be

infexred from the surrounding circumstances." (Emphasis added.) State v. Logan (1979), 60

Ohio St.2d 126, 131. Moreover, Officer Kabellar's testimony that he "placed [Mr. Spears] on

the hood of a vehicle in order to control his person to effectuate handcuffing" does not preclude

the conclusion that Officer Kabellar was in fact also responding out of irritation or a desire to

injure Mr. Spears.

(1129} Mr. Spears' son's affidavit averred that Mr. Spears' face was swollen and thai. Mr.

Spears was complaining of a wrist injury when Mr. Spears' son picked him up fiom the

detoxification center, Mr. Spears' doctor stated in his letter accompanying his affidavit that "Mr.

Spears['] wrist injury that being the radial sensory neuritis and aggravation of his preexisting

osteoartliritis is a direct injury that occurred during his handcuffing and placeinent into a police

vehicle." The doctor further stated that Mr. Spears' condition is permanent and he will never

have norrnal function in that wrist.

{9i30} Tliere is sufficient evidence in tlhe record to conclude that there is a gcnuine issue

of material fact concerning whether Officer Kabellar's actions were done with a "malicious

pmpose, in bad faith, or in a wanton or- i-eclcless marmer[.]" R.C. 2744.03(A)(6)(b). ZVhi1e Mr.

Spears does not deny being uncooperative, he explained in his deposition that he told Officer

Kabellar that he could not continue with the field sobriety testiug due to a prior neck injury.

Officer Kabellar indicated that when Mr. Spcars refused to further participate in the testing lre

placed Mr. Spears under arrest. This is allegedly when Mr. Spears "becarne verbally combative

and started walking away." Mr. Spears does not deny tliis. Nonetheless, there is no testimony in

the record indicating that D11r. Spears ever became physically abusive towards Officer Kabellar.

{¶31} Rrhat happens next is in dispute. OfGcer Kabellar stated that he "placed" Mr.

Spears on a vehiele in order to handcuff him. Mr. Spears alleged that Officer Kabellar grabbed

his neck and left hand and "slammed" Mr. Spears' face on the cruiser. Mrs. Spears confrrn-ied

the above and stated that she did not know why Mr. Spears was being treated in that way.

{932} Officer Kabellar averred that he fixed Mr. Spears handcuffs as soon as he became

awarc that they were too tight. He also indicated that Mr. Spears caused the handcuffs to

become too tight by lying on them. Mr. Spears however claimed that he repeatedly complained

about the handcuffs being too tight aud that problem was not remedied. Mrs. Spears heard ller

husband complain about the handcuffs and confinned that they were not loosened.

{9133} Disregarding the contradictory testimony of Mr. Spears' affidavit, it is clear that

Officer Kabellar's actions in placing Mr. Spears into the paddy wagon were for the purpose of

assisting Mr. Spears and not hln-ting him. It is also clear that Mr. Spears did not complain about

any injury during the mobility testing and appeared to be able to freely move both of his hands

and wrists. However, both Mrs. Spears and Mr. Spears' son stated ttiat when they saw Mr.

14

Speat-s aft.er the incident his face was swollen and he complained of wrist pain. Mr. Spears'

physician concluded that Mr. Spears' injuries occurred during the incident.

{11341 Given the above evidence presented to the trial court there is a genuine issue of

material fact concerning whether Officer Kabellar's actions were done with a"malicious

purpose, in bad faith, or in a wanton or reckless manner[.]" R.C. 2744.03(A)(6)(b). If the facts

as presented by Mr. and Mrs. Spears are true, if nothing else, it could reasonably be detennined

that Officer Kabcllar's aetionsin arresting Mr. Spears were reckless in that lse was aware that his

conduct "crea.te[d] an unreasonable risk of physical hann to [Mr. Spears][,]" Thompson, 53 Ohio

St.3d at. 104, or were done with a malicious purpose in that Officer Kabellar could be perceived

as willfully and intentionally acting with a purpose to cause hcum. Piro, 102 Ohio App,3d at

139. While a jury could find the Officer's actions reasonable under the circumstances, a ju.ry

could also find that slaanming a suspect's face into a police car, forcibly grabbing him by the

neck and arm a.ld then applying handcuffs too tightly or allowing them to rcrnain too tight when

the officer was not confronted by a physically combative suspect could constitute reckless or

malicious behavior on the part of the officer. As reasonable minds could differ on whetlier

Officer Kabellar's conduct was reckless or done with malicious purpose, summary judgment was

inappropriate. See, e.g., Ruth v. Jennings (1999), 136 Ohio App.3d 370, 375-376 (even

assurning appellant was resisting arrest, the facts required "further inquiry to detertnine whether

the actions of the arresting officers were reasonable under the circumstances, or whether the

officers acted in a malicions, willful or wanton manner[]"); MacNamara v. Gusain (June 4,

1999), 2d Dist. No. 17575, at *6 ("Assuming the truth of Judy MacNamara's assertions that one

of the officers had tightened the handcuffs after she had explained that they were too tight, that

her shoulder had `popped,' and that she had injured her shoulder while being shoved into the

15

police ciuisei-, reasonable minds could conehide that Officers Gustin and Colvin had acted with a

malicious purpose, in bad faith, or in a reckless manner.").

ASSIGNMENT OF ERROR III

"THE TR1AL COURT ERRED IN NOT DISMISSING DOTTIE SPEARS'DERIVATIVE LOSS OF CONSORTIUM CLAIM[.]"

{135} In the City's and Officer Kabellar's third assignment of error they allege that the

,tirent on Mrs. Spears' consortium claimtrial court erred in not granting them summary judi,

because it is a derivative claim and all of Mr. Spears' clainls fail. We disagree.

{¶36} "A claim for loss of consortium is derivative and, but for the priinary cause of

action by the plaintiff, would not exist." Bradle,7, v. Sprenger Enterprises, Ii2c., 9th Dist, No.

07CA009238, 2008-Ohio-1988, at 114. However, as we agreed with the trial coui-t's

determination that Mr. Spears' c.laims for assault and battery against Officer Kabellar survive

summary judgment, the loss of consortium claim sur-vives as well. See A1oss v. Lorain Ctv. Bd.

ofMental Retardation, 9th Dist. No. 09CA009550, 2009-Ohio-6931, at $32.

III.

{¶37} The City's and Officer ICabellar's first assigiiunent of error is sustained and the

remaining assignments of error are overruled. The judgment of the Sunvnit County Court of

Common Pleas is affirmed in part and reversed in part.

.udgment af'firnied in part,reversed in part,

and cause remandcd.

There were reasonable grounds for this appeal.

16

We order that a special niandate issue out of this Court, clirecting the Court of Conunon

Plcas, County of Sum.mit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal enhy shail constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Conrt of Appeals at which tnne the

period for review sha11 begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

iirsti-ucted to n7ai1 a notice of entry of tliisjudginent to flzeparties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to all parties equally.

CARLA MOOREFOR THE COLTRT

VJHITMORE, J.DICKTNSON, P. J.CONCLJR

1PPEARANCES:

CHERI C.UNNINGHAM, Director of Law, PATRICIA AMBROSE RUBRIGI3T, and

MICHAEL J. DEFIBAUGH, Assistant Directors of Law, for Appellants.

KERRY O'BRIEN, Attoniey at Law, for Appellee.