[Cite as Alden v. Dorn, 2016-Ohio-554.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JARRED ALDEN, et al. C.A. No. 27878
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DALE DORN, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV 2014-07-3473
DECISION AND JOURNAL ENTRY
Dated: February 17, 2016
SCHAFER, Judge.
{¶1} Plaintiffs-Appellants, Jarred and Sarah Alden (“Appellants”), appeal the judgment
of the Summit County Court of Common Pleas denying their motion for summary judgment and
granting the summary judgment motion of Defendants-Appellees, Sergeant Dale Dorn, Police
Chief James Nice, and the City of Akron Police Department (“Appellees”). For the reasons set
forth below, we affirm.
I.
{¶2} Sergeant Dale Dorn of the Akron Police Department and his wife hosted a
cookout party at their home. Appellants and their two minor children, B.A. and E.A., attended
the cookout for most of the day. At that time, Sgt. Dorn was the canine commander of the Akron
Police Department K-9 Unit and he kept one the City’s police dogs, a German Shepard named
Gunny, at his house.
2
{¶3} Appellants were sitting on the home’s backyard patio with Sgt. Dorn and his wife
while Sgt. Dorn played fetch with Gunny. Eventually, Sgt. Dorn stopped playing fetch and
ordered Gunny to lie down near his chair on the patio. At the precise moment that Gunny laid
down, B.A. walked onto the patio. Gunny then suddenly jumped on B.A. and knocked him to
the ground, where he proceeded to bite the back of B.A.’s head and left arm. This incident lasted
a matter of seconds before Sgt. Dorn separated Gunny from the child and carried the dog to his
kennel. Appellants immediately attended to B.A.’s wounds in the kitchen before Sgt. Dorn
drove B.A. and Mr. Alden to the hospital, where B.A. was treated with 16 stiches.
{¶4} Appellants filed a complaint against Appellees in the Summit County Court of
Common Pleas wherein they asserted four claims: strict liability under R.C. 955.28(B),
negligence, loss of consortium, and negligent infliction of emotional distress. The Appellees
sued Sgt. Dorn and Police Chief James Nice in their official and individual capacities. At the
close of discovery, Appellants filed a motion for summary judgment. Appellees responded in
opposition to Appellants’ summary judgment motion, arguing that they are entitled to statutory
immunity.1 Appellees also separately moved the trial court for summary judgment with regard
to Appellants’ four claims. Appellants did not file a response to Appellees’ motion. The trial
court ultimately denied Appellants’ motion for summary judgment, but granted Appellees’
motion for summary judgment on the basis of statutory immunity.2
{¶5} Appellants filed a timely appeal, raising one assignment of error for our review.
1
Appellees argue that Sgt. Dorn and Chief Nice are both entitled to immunity from
liability in their official capacities pursuant to R.C. 2744.02(A). Alternatively, Appellees argue
that Sgt. Dorn and Chief Nice are entitled to immunity from liability in their individual capacities
under R.C. 2744.03(A)(6).
2
The trial court’s judgment entry granting summary judgment in favor of Appellees does
not specify whether Sgt. Dorn and Chief Nice are entitled to immunity from liability in their
official or individual capacities.
3
II.
Assignment of Error
The trial court committed error in granting the motion for summary
judgment of Appellees and in denying the motion for summary judgment of
Appellants, meriting reversal.
{¶6} In their sole assignment of error, Appellants argue that the trial court erred by
denying their motion for summary judgment and by granting Appellees’ motion for summary
judgment. We disagree.
{¶7} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). Summary judgment is only appropriate where (1) no genuine
issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) the
evidence can only produce a finding that is contrary to the non-moving party. Civ.R. 56(C).
Before making such a contrary finding, however, a court must view the facts in the light most
favorable to the non-moving party and must resolve any doubt in favor of the non-moving party.
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).
{¶8} Summary judgment consists of a burden-shifting framework. To prevail on a
motion for summary judgment, the party moving for summary judgment must first be able to
point to evidentiary materials that demonstrate there is no genuine issue as to any material fact,
and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio
St.3d 280, 293 (1996). Once a moving party satisfies its burden of supporting its motion for
summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R.
56(E) provides that the non-moving party may not rest upon the mere allegations or denials of
the moving party's pleadings. Rather, the non-moving party has a reciprocal burden of
responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to
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be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).
Here, both parties agree that no factual disputes exist in this matter. As such, the sole issue
before this Court is whether Appellees were entitled to immunity from liability. This question is
resolved simply by applying existing case law to the facts of the instant case.
{¶9} R.C. 2744.03(A)(6) provides immunity for employees of political subdivisions,
and it pertinently provides as follows:
In a civil action brought against * * * an employee of a political subdivision to
recover damages for injury, death, or loss to person or property allegedly caused
by any act or omission in connection with a governmental or proprietary function,
* * * the employee is immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly outside the scope of the
employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad faith,
or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code. Civil liability shall not be construed to exist under another
section of the Revised Code merely because that section imposes a
responsibility or mandatory duty upon an employee, because that section
provides for a criminal penalty, because of a general authorization in that
section that an employee may sue and be sued, or because the section uses the
term “shall” in a provision pertaining to an employee.
{¶10} After carefully reviewing the record, we determine that Appellees met their initial
burden of demonstrating that no genuine issue of material fact exists in this matter and that they
are entitled to judgment as a matter of law. In their motion for summary judgment, Appellees
cite to evidence within the record demonstrating that they were employed by a political
subdivision on July 4, 2010 and that Sgt. Dorn was training and harboring Gunny on the day in
question pursuant to City of Akron policy. As these facts are not in dispute, Appellees argue in
their motion for summary judgment that they are entitled to immunity as a matter of law.
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{¶11} We further determine that Appellants have failed to meet their reciprocal burden
in this matter. Appellants have failed to articulate how any of the exceptions to R.C.
2744.03(A)(6)’s grant of immunity to political subdivision employees are applicable in this case.
While Appellants argue that R.C. 955.28(B)’s imposition of strict liability on any individual who
owns, keeps, or harbors a dog that causes injury to another takes Appellees’ actions in this matter
outside the scope of R.C. 2744.03(A)(6)’s protection, “R.C. 955.28(B) does not have any
language expressly creating liability upon a political subdivision.” Jamison v. Stark Cty. Bd. of
Commrs., 5th Dist. Stark No. 2014CA00044, 2014-Ohio-4906, ¶ 18, citing Perry v. East
Cleveland, 11th Dist. Lake No. 95-L-111, 1996 WL 200558 (Feb. 16, 1996). Thus, because R.C.
955.28(B) does not expressly impose civil liability upon political subdivisions, Appellants’
reliance upon this statute is misplaced. Moreover, Appellants have not developed any argument
that Appellees’ actions in this matter satisfied the other exceptions listed in R.C. 2744.03(A)(6),
and we decline to develop an argument on their behalf. See App.R. 16(A)(7).
{¶12} In light of the foregoing, we conclude that the trial court did not err in granting
summary judgment in favor of Appellees on all four of Appellants’ claims. Accordingly,
Appellants’ assignment of error is overruled.
III.
{¶13} Appellants’ sole assignment of error is overruled and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall 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 Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JULIE A. SCHAFER
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
EDDIE SIPPLEN, Attorney at Law, for Appellants.
EVE V. BELFANCE, Director of Law, and JOHN CHRISTOPHER REECE and MICHAEL J.
DEFIBAUGH, Assistant Directors of Law, for Appellee.