Stallworth v. City of Cleveland

WELLFORD, Circuit Judge,

concurring in part and dissenting in part:

I agree with Judge Gilmore’s accurate exposition of pertinent facts in part I, and *839with his conclusion in parts II and V. With regard to the resubmission of interrogatories to the jury, I concur in the finding of no error but note that the question at least to me is not so “clear” as it appears to the majority.

With respect to part III, were it not for the recent decision in Molton v. City of Cleveland, 839 F.2d 240 (6th Cir.1988), cert. denied, - U.S.-, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989), by which we are bound because it involves a comparable fact situation, I would find for the defendant City of Cleveland. I note that Molton was the first decision of our court which determined that under Ohio law the city was vicariously liable for a tortious act of a police officer because such action was “not unexpectable.” 839 F.2d at 249. Molton cited Enghauser Mfg. Co. v. Ericksson Eng’g Ltd., 6 Ohio St.3d 31, 451 N.E.2d 228 (1983), as authority for the proposition which changed the law in Ohio existing since 1854 (in a non-police officer context) that sovereign immunity of a municipality was abolished for tortious actions of agents in the “performance” of municipal “activities.” 451 N.E.2d at 232. It was not until July 1985, after the episode in question had occurred in the instant case, that vicarious responsibility of a municipality in Ohio for the single tortious act of a police officer was decided. Longfellow v. City of Newark, 18 Ohio St.3d 144, 480 N.E.2d 432 (Ohio 1985).1

There is a question, then, in my mind as to whether the Ohio law cited should be applied to this 1985 episode. Molton, however, without considering the retroactive effect of the change in the Ohio law heretofore mentioned, held that this Ohio law applied to a 1981 episode. Appellant City does not raise any contention about retroactive effect, and so I join the result reached in part on law. I also find the amount of the damage in this case to be at the upper limits of reasonableness as to compensatory damages.

With regard to part IV dealing with allowance of prejudgment interest against the City, I cannot agree. Molton v. City of Cleveland, states the general rule:

Generally, prejudgment interest is not permitted under Ohio law where the claim is unliquidated — where damages were not readily ascertainable prior to trial. Coal Resources, Inc. v. Gulf & Western Indus., 756 F.2d 443, 451 (6th Cir.1985).

839 F.2d at 250.

While the damages in this case were not “ascertainable prior to trial,” and were clearly “unliquidated” in nature, interest on these damages may be granted under recent expressions of Ohio law. One would be hard pressed to find the City guilty of bad faith in denying liability in this case where a police officer engaged in a purely personal affair and had become involved in an altercation with a grandmother about moving her car. I conclude that the district court’s findings to the contrary are not supportable.2 See Huffman v. Hair Surgeon Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985), where the court upheld prejudgment interest based on a finding that “[T]he trial court obviously did not abuse its discretion when, after conducting a hearing, it found appellee’s lack of good faith well documented.” 482 N.E.2d at 1252 n. 6 (emphasis added).

I would therefore find the award of prejudgment interest to be in error. I dissent, therefore, from the allowance of prejudgment interest in part IV.

. This was a hotly contested 4 to 3 decision of the Ohio Supreme Court. Were I free to do so, I would join the reasoning of the minority and find the City not liable.

. Three separate affidavits of various counsel for the City of Cleveland were filed which re-fleeted their actions concerning offers of settlement, if any, made to the City. Plaintiff's counsel simply stated that he was “under the impression that the City of Cleveland has a policy of not attempting to settle cases like the case.”