[Cite as Hunt v. Alderman, 2015-Ohio-4667.]




STATE OF OHIO                   )                       IN THE COURT OF APPEALS
                                )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

MIGUEL HUNT, et al.                                     C.A. No.   27416

        Appellees

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
ROBERT E. ALDERMAN, JR.                                 COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CV 2012-09-5320

                                DECISION AND JOURNAL ENTRY

Dated: November 12, 2015



        MOORE, Judge.

        {¶1}    Defendant-Appellant Robert E. Alderman, Jr. appeals from the entry of the

Summit County Court of Common Pleas denying his motion for summary judgment. We reverse

and remand to the trial court for further clarification.

                                                   I.

        {¶2}    On October 21, 2011, Mr. Alderman and Plaintiff-Appellee Miguel Hunt, both

deputy sheriffs with the Summit County Sheriff’s Office and members of the SWAT team, were

part of a SWAT in-service training session. Both men participated in the training at the direction

of their employer. The session was a Taser instructor course. The course involved classroom

instruction followed by training scenarios. Some of the scenarios involved a simulated entry into

a room by members of the SWAT team. In the scenario at issue, Mr. Alderman was part of the

entry team and his role was that of lethal cover for his team. He had with him an unloaded
                                                2


submachine gun. Mr. Hunt played the role of a suspect. He was instructed to be verbally

uncooperative. Mr. Hunt was dressed in a lightly padded Taser suit, which covered him from

head to toe and protected him by preventing the Taser barbs from contacting his skin. However,

the Taser suit was not designed to protect against physical force. The Tasers used in the training

did not deliver an electrical shock and the barbs in the training Tasers were shorter than those

used by safety forces during regular duty. Deputy Richard Wright was involved in the scenario;

he was the team member with a Taser.

       {¶3}    The scenario was supposed to involve Mr. Hunt being verbally uncooperative

while walking towards Mr. Wright. If Mr. Hunt continued to be uncooperative, Mr. Wright

would then deploy the Taser. The scenario, however did not go as anticipated. Mr. Alderman

believed it was his role to prevent Mr. Hunt from moving towards, and harming, other members

of the team. Thus, once Mr. Hunt began moving towards Mr. Wright, Mr. Alderman struck Mr.

Hunt in the head with the end of his weapon.1 Mr. Hunt fell to the ground. Mr. Alderman, who

appeared very distraught upon seeing Mr. Hunt fall, came over to Mr. Hunt, apologized, and

remarked that he thought Mr. Hunt was wearing a helmet.

       {¶4}    Mr. Hunt received medical treatment and ultimately was diagnosed with a

concussion. He received workers’ compensation for his injuries. The incident prompted the

Summit County Sheriff’s Office to conduct an internal investigation. The report that issued from

that investigation found Mr. Alderman negligent in his use of force.

       {¶5}    In September 2012, Mr. Hunt and his wife filed a two-count complaint for assault

and battery and loss of consortium against Mr. Alderman. Mr. Alderman filed a motion for

summary judgment asserting that he was entitled to co-worker immunity as provided by R.C.

       1
        There is a factual dispute in the record with respect to whether Mr. Alderman struck Mr.
Hunt with the butt end of the weapon or the muzzle end.
                                               3


4123.741. Additionally, he asserted that the intentional tort exception to co-worker immunity

was not applicable in light of the facts. Mr. Hunt filed a brief in opposition and Mr. Alderman

filed a reply. Mr. Hunt also filed a motion to strike portions of Mr. Alderman’s affidavit, the

Summit County Sheriff’s Office’s report, and the finding made based upon that report. Mr.

Alderman opposed the motion.

       {¶6}    The trial court denied Mr. Alderman’s motion for summary judgment without

expressly ruling on Mr. Hunt’s motion to strike. The trial court summarized the motion for

summary judgment as follows:         “[Mr. Alderman] argues that he is entitled to co-worker

immunity pursuant to R.C. 4123.741 and that the intentional tort exception to co-worker

immunity is not applicable.” The trial court concluded that, “[w]ith regard to the issue of

whether the intentional tort exception is applicable, the Court finds that genuine issues of

material fact remain to be litigated.”

       {¶7}    Mr. Alderman has appealed, raising three assignments of error for our review.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY NOT FINDING THAT [MR.] ALDERMAN
       MET HIS INITIAL BURDEN OF POINTING TO EVIDENCE IN THE
       RECORD THAT DEMONSTRATES A LACK OF GENUINE ISSUES OF
       MATERIAL FACT WITH RESPECT TO IMMUNITY UNDER R.C. 4123.741.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY IMPLICITLY FINDING, WITHOUT
       EXPLANATION THAT [MR.] HUNT HAD PUT FORTH SUFFICIENT
       EVIDENCE TO OVERCOME THE EVIDENCE SUPPORTING [MR.]
       ALDERMAN’S MOTION FOR SUMMARY JUDGMENT.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY NOT GRANTING IMMUNITY TO [MR.]
       ALDERMAN UNDER R.C. 4123.741.
                                                  4


       {¶8}    Mr. Alderman argues in his first assignment of error that the trial court erred in

concluding that he failed to meet his initial burden under R.C. 4123.741. He asserts in his

second assignment of error that the trial court erred in implicitly finding that Mr. Hunt met his

reciprocal burden. Finally, Mr. Alderman maintains in his third assignment of error that the trial

court erred in not granting him the benefit of immunity pursuant to R.C. 4123.741. As Mr.

Alderman’s assignments of error are related, they will be addressed together.

       {¶9}    “The denial of a motion for summary judgment is not ordinarily a final,

appealable order.” Buck v. Reminderville, 9th Dist. Summit No. 27002, 2014-Ohio-1389, ¶ 5.

“However, Revised Code Section 2744.02(C) provides that ‘[a]n order that denies * * * an

employee of a political subdivision the benefit of an alleged immunity from liability as provided

in this chapter or any other provision of the law is a final order.’” (Emphasis omitted.) Buck at

¶5, quoting R.C. 2744.02(C). “The Ohio Supreme Court has recognized that this section applies

to render the denial of immunity under any state or federal law a final, appealable order.” Buck

at ¶ 5, citing Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, ¶ 15. Given that

the entry of the trial court denied Mr. Alderman, an employee of the Summit County Sheriff’s

Office, the benefit of the immunity provided by R.C. 4123.741, we conclude the trial court’s

entry is a final, appealable order. See Buck at ¶ 5-6.

       {¶10} In reviewing a trial court’s ruling on a motion for summary judgment, this Court

applies the same standard as the trial court, viewing the facts of the case in the light most

favorable to the non-moving party and resolving any doubt in favor of the non-moving party.

Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). Pursuant to Civ.R. 56(C),

summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
                                                 5


         the evidence that reasonable minds can come to but one conclusion, and viewing
         such evidence most strongly in favor of the party against whom the motion for
         summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party 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, 75 Ohio St.3d 280,

292-93 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering

specific facts to show a genuine issue for trial. Id. at 293; Civ.R. 56(E).

         {¶11} Mr. Alderman argues that R.C. 4123.741 provides him with immunity for the

incident on October 21, 2011, and that the intentional tort exception to that immunity does not

apply.

         {¶12} R.C. 4123.741 provides that,

         [n]o employee of any employer, as defined in division (B) of section 4123.01 of
         the Revised Code, shall be liable to respond in damages at common law or by
         statute for any injury or occupational disease, received or contracted by any other
         employee of such employer in the course of and arising out of the latter
         employee’s employment, or for any death resulting from such injury or
         occupational disease, on the condition that such injury, occupational disease, or
         death is found to be compensable under sections 4123.01 to 4123.94, inclusive, of
         the Revised Code.

         {¶13} Mr. Hunt only appears to assert that the immunity conferred by R.C. 4123.741

does not apply to Mr. Alderman because the intentional tort exception applies. Mr. Alderman

denies that the exception applies, arguing that there was no evidence that he intended to injure

Mr. Hunt. The parties do not dispute that Mr. Hunt and Mr. Alderman were employees of the

Summit County Sheriff’s Office and were at the training session at the behest of their employer.

Moreover, there is no dispute that Mr. Hunt received workers’ compensation payments for his

injuries.
                                                6


       {¶14} The Supreme Court has stated that “[c]ommon-law damages are clearly

unavailable under R.C. 4123.741 for injuries negligently inflicted by a co-employee in the course

of employment.”     Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 100 (1984), superseded on other

grounds by statute as stated in Houdek v. ThyssenKrupp Materials, N.A., Inc., 134 Ohio St.3d

491, 2012-Ohio-5685. However, the Supreme Court of Ohio has not specifically held that an

intentional tort exception exists in the context of fellow employee suits and R.C. 4123.741. See

State ex rel. Yeaples v. Gall, 141 Ohio St.3d 234, 2014-Ohio-4724, ¶ 18 (stating that to resolve

the case before it, the Court “need not tread into the complex workers’ compensation milieu to

determine whether Ohio recognizes the workplace intentional tort against a co-employee”).

Nonetheless, in light of other precedent and dicta, it is reasonable to conclude such an exception

does exist. In discussing R.C. 4123.74, the statute addressing employer immunity, the Supreme

Court has noted that, “[b]y designating as compensable only those injuries ‘ * * * received or

contracted * * * in the course of or arising out of * * * employment * * *,’ the General Assembly

has expressly limited the scope of compensability.”         Blankenship v. Cincinnati Milacron

Chems., Inc., 69 Ohio St.2d 608, 612 (1982), superseded on other grounds by statute as stated in

Houdek. Thus, “where an employee asserts in his complaint a claim for damages based on an

intentional tort, * * * the substance of the claim is not an injury * * * received or contracted by

any employee in the course of or arising out of his employment within the meaning of R.C.

4123.74 * * *.” (Internal quotations and citation omitted.) Id. at 613. Therefore, the Supreme

Court held that, “[s]ince an employer’s intentional conduct does not arise out of employment,

R.C. 4123.74 does not bestow upon employers immunity from civil liability for their intentional

torts and an employee may resort to a civil suit for damages.” Id.
                                                7


       {¶15} Given that identical phrasing is found in R.C. 4123.741, it is reasonable to

conclude that fellow employees are likewise not immune from civil liability for intentional torts.

See also Blankenship at 618-619 (Brown, J., concurring) (“This court has never yet ruled that an

employer may intentionally harm an employee and remain immune to civil suit. Nor have we

yet ruled that a fellow employee may intentionally harm another employee with such impunity. *

* * Accordingly, the common law right of action against an employer or fellow employee for

intentional torts remains.”); Jones at 100; Whiston v. Bio-Lab, Inc., 85 Ohio App.3d 300, 311

(9th Dist.1993) (R.C. 4123.741 immunity “does not apply to the intentional torts of fellow

employees[.]”); Switka v. Youngstown, 7th Dist. Mahoning No. 05MA74, 2006-Ohio-4617, ¶ 33

(R.C. 4123.741 immunity “does not extend to intentional torts, which by definition do not arise

in the course of one’s employment.”); LaCava v. Walton, 8th Dist. Cuyahoga No. 69190, 1996

WL 325274, *2-*3 (June 13, 1996); but see Ross v. Diamond Internatl. Corp., 12th Dist. Butler

Nos. CA84-08-093, CA84-09-094, CA84-09-095, 1985 WL 8711, *2 (June 28, 1985).

       {¶16} In the context of addressing employee actions against employers, the Ohio

Supreme Court has held that “[a]n intentional tort is an act committed with the intent to injure

another, or committed with the belief that such injury is substantially certain to occur.” Jones,

15 Ohio St.3d at paragraph one of the syllabus; see Tablack v. Bd. of Mahoning Cty. Commrs.,

7th Dist. Mahoning No. 07 MA 197, 2008-Ohio-4804, ¶ 53; Switka, 2006-Ohio-4617, at ¶ 34

(applying Jones in a fellow employee case).

       {¶17} In subsequently modifying the test, the Supreme Court of Ohio held that,

       [t]o establish an intentional tort of an employer, proof beyond that required to
       prove negligence and beyond that to prove recklessness must be established.
       Where the employer acts despite his knowledge of some risk, his conduct may be
       negligence. As the probability increases that particular consequences may follow,
       then the employer’s conduct may be characterized as recklessness. As the
       probability that the consequences will follow further increases, and the employer
                                                8


       knows that injuries to employees are certain or substantially certain to result from
       the process, procedure or condition and he still proceeds, he is treated by the law
       as if he had in fact desired to produce the result. However, the mere knowledge
       and appreciation of a risk-something short of substantial certainty-is not intent.

       {¶18} Fyffe v. Jeno’s Inc., 59 Ohio St.3d 115 (1991), paragraph two of the syllabus.2

{¶19} We conclude that we are unable to fully and appropriately review the trial court’s

decision in light of its brief entry. The trial court summarized the motion for summary judgment,

stating that, “[Mr. Alderman] argues that he is entitled to co-worker immunity pursuant to R.C.

4123.741 and that the intentional tort exception to co-worker immunity is not applicable.” The

trial court immediately thereafter concluded that, “[w]ith regard to the issue of whether the

intentional tort exception is applicable, the Court finds that genuine issues of material fact

remain to be litigated.” The entry provides no other analysis or reasoning. While the trial court

determined that genuine issues of material fact remained with respect to whether the intentional

tort exception applied, we are left to speculate as to precisely what the trial court concluded. As

stated above, “[a]n intentional tort is an act committed with the intent to injure another, or

committed with the belief that such injury is substantially certain to occur.” (Emphasis added.)

Jones, 15 Ohio St.3d at paragraph one of the syllabus. The trial court could have concluded that

an issue of fact remains with respect to whether Mr. Alderman intended to harm Mr. Hunt, with




       2
         In Fyffe, the Supreme Court additionally adopted a three-part employer specific test to
address whether intent was established. See id. at paragraph one of the syllabus. It is unclear
how, or whether, that test should be modified to address fellow employee intentional tort cases.
Additionally, we note that, in enacting R.C. 2745.01, the General Assembly articulated a more
limited definition of “substantially certain[,]” see R.C. 2745.01(B), thereby intending to permit
“recovery for employer intentional torts only when an employer acts with specific intent to cause
an injury * * *.” (Emphasis added and omitted.) Houdek, 134 Ohio St.3d 491, 2012-Ohio-5685,
¶ 23, quoting Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, ¶ 56.
However, because that definition only applies to R.C. 2745.01 cases (actions brought against an
employer by an employee), that definition has no application here, as the action involves the
conduct of fellow employees.
                                                 9


respect to whether Mr. Alderman acted with a belief that injury was substantially certain to

occur, or it could have concluded that an issue of fact remains with respect to both prongs. Any

of those determinations would have led the trial court to determine summary judgment was

inappropriate based up on the intentional tort exception to co-worker immunity. Absent further

clarity from the trial court, we are unable to determine what the trial court decided, and, thus, any

meaningful review is greatly hindered. “This Court has recognized that, ‘[if] a trial court’s

judgment is not sufficiently detailed, a reviewing court may be left in the unfortunate position of

being unable to provide meaningful review.’” Pitts v. Sibert, 9th Dist. Summit No. 27345, 2015-

Ohio-3020, ¶ 21, quoting Kokoski v. Kokoski, 9th Dist. Lorain No. 12CA010202, 2013-Ohio-

3567, ¶ 11, quoting Zemla v. Zemla, 9th Dist. Wayne No. 11CA0010, 2012-Ohio-2829, ¶ 19.

See also Murray v. David Moore Builders, Inc., 9th Dist. Summit No. 23257, 2006-Ohio-6751, ¶

8-10; MSRK, L.L.C. v. Twinsburg, 9th Dist. Summit No. 24949, 2012-Ohio-2608, ¶ 10.

Accordingly, to the extent Mr. Alderman has asserted the trial court erred, we agree. We reverse

the trial court’s judgment and remand the matter “so that the trial court can create an entry

sufficient to permit appellate review.” Pitts at ¶ 21, quoting MSRK, L.L.C. at ¶ 10.

       {¶20} Mr. Alderman’s assignments of error are sustained to the extent discussed above.

                                                III.

       {¶21} The judgment of the Summit County Court of Common Pleas is reversed, and the

matter is remanded for proceedings consistent with this opinion.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.
                                                10


       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 Appellees.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and MARVIN D. EVANS, Assistant
Prosecuting Attorney, for Appellant.

DAVID P. BERTSCH, Attorney at Law, for Appellee.
