Spires v. City of Lancaster

Clifford F. Brown, J.,

dissenting. Two Lancaster police officers, *81 after first blocking John Spires’ automobile both in the front and in the rear, had bank officials order him to move his car. This simultaneously perfected a criminal trespass charge and also prevented Spires from moving his automobile. The two healthy officers must surely have found Spires, a five-foot two-inch, one hundred twenty-five pound diabetic with ailing kidneys and in insulin shock, a challenging adversary, as they felt compelled to drag him through his car’s open window to place him under arrest, at which time, during the handcuffing, his arm was broken. He was further charged with resisting arrest. Although subsequently informed that Spires’ insulin shock prevented him from responding to the officers at the scene, the officers insisted on pressing charges, as did the city of Lancaster, until those charges were dismissed on the day set for trial.

In instructing the jury subsequent to the trial of Spires’ claims against the city and officers for malicious prosecution, false imprisonment, and for breaking his arm, the trial court explicitly stated that under the applicable standard the city could be subject to punitive damages on the malicious prosecution count. Counsel for Lancaster stated that his clients were “satisfied” with the jury instructions. Thus, no objection was made.

Civ. R. 51(A) states in pertinent part:

“A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict * * (Emphasis added.)

The city of Lancaster clearly had the opportunity to object to the jury instructions. Not only did the city fail to object, but it explicitly approved of the jury instructions. Generally, such failure to object waives the right to claim error under Civ. R. 51(A). Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207 [ 24 O.O.3d 316 ].

An exception to the Civ. R. 51(A) mandate has been enunciated by this court in Schade, supra. Although Schade appeared to adopt the “plain error” exception for civil suits, such a ruling was improper as the record clearly showed that a timely objection had been made. Id. at 212 (Clifford F. Brown, J., dissenting). Likewise, in Reichert v. Ingersoll (1985), 18 Ohio St. 3d 220, 222 , counsel timely objected to the relevant charge to the jury. The problem in Reichert was that the record did not disclose the objection. We held in Reichert that the court of appeals failed to apply App. R. 9(E) to determine what properly should have been in the record. The plain error exception is not applicable to the case here. Therefore, the court of appeals decision should be affirmed.

Even if this action is determined on the merits, however, the defendant city should still not prevail. The antiquated and judicially adopted doctrine of sovereign immunity was abrograted by this court in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26 . Subsequent to our decision in Haverlack, we clearly stated that under Ohio law as announced in our previous decisions, the defense of sovereign immunity is not available to a municipal corporation. Adams v. Peoples (1985), 18 Ohio St. 3d 140 ; *82 Longfellow v. Newark (1985), 18 Ohio St. 3d 144 . The majority analysis conspicuously ignores the mandate of Adams. Likewise, the majority completely ignores the syllabus in Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118 , which reads, “[i]n the absence of a statute providing immunity, the defense of sovereign immunity is not available to a municipal corporation in an action for damages alleged to be caused by the tortious conduct of the municipality.” The law in Ohio is clearly in direct opposition to the decision the majority makes today, and I refuse to concur with it.

Furthermore, the legislature enacted R.C. 2744.05(A) on November 20, 1985. 5 As amended, R.C. 2744.05(A) statutorily imposes sovereign immunity in certain enumerated circumstances. The General Assembly’s enactment of R.C. 2744.05(A), contrary to the claims of the majority, clearly illustrates the General Assembly’s realization that the doctrine of sovereign immunity was not available as a defense for any municipal corporation. See, e.g., Strohofer, supra. Because the General Assembly recognized that sovereign immunity was appropriate in certain circumstances, it enacted R.C. 2744.05(A). Thus, sovereign immunity is available as a defense to municipal corporations only to the extent a statute specifically authorizes its use.

Finally, I take issue with the propriety of the majority’s remand of this action to the court of appeals for a determination “of the appropriateness of an award of punitive damages against the individual defendant police officers.”

By the majority’s own admission, the sole issue appealed to this court is the issue of the propriety of assessing punitive damages against a municipal corporation, already well-settled law in Ohio. That is the only issue before this court. The parties were all provided with the opportunity to appeal any portion of the court of appeals’ decision which was adverse to them. With the exception of the single issue appealed to this court, all of the parties have accepted the remaining portion of the judgment of the court of appeals, and that remaining portion of the judgment may not properly be questioned. Yet, the majority sees fit to order the court of appeals to readdress a portion of its judgment in this case concerning which no proper legal question remains.

Therefore, I respectfully dissent.

Sweeney, J., concurs in the foregoing dissenting opinion.

See fn. 4, supra.