COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67777 MARY F. WINGARD : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : CITY OF CLEVELAND : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JULY 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-196005. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Steven L. Howland, Esq. 1025 Huntington Building 925 Euclid Avenue Cleveland, OH 44115 For Defendant-Appellee: Verna Jo Lanham, Esq. Assistant Law Director City of Cleveland Room 106, City Hall 601 Lakeside Avenue Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Plaintiff-appellant, Mary F. Wingard, appeals the verdict rendered in favor of defendant-appellee, Eugene Bell, a City of Cleveland police officer. Appellant raises four errors for review. This court, finding no error, affirms the verdict of the trial court. I. STATEMENT OF FACTS On August 29, 1989, defendant-appellee, Eugene Bell, a Cleveland police officer was assigned to traffic duty in the Fourth District. During rush hour, appellee observed an automobile belonging to plaintiff-appellant, Mary F. Wingard, illegally parked in the area of East 143 Street and Kinsman Road. Appellant's automobile was parked in front of Vivian's Restaurant. Appellee was writing a parking ticket when appellant ran out of the restaurant. After attempting to hand appellant the parking ticket, appellee informed appellant she would have to move her automobile. Appellant did not accept the ticket and walked back into the restaurant. Appellee placed the ticket on appellant's windshield and proceeded with his patrol route. When appellee returned to the area, he noticed appellant's automobile still parked illegally in front of the restaurant. Appellee obtained the necessary information from appellant's automobile for it to be towed. During this time, appellant walked out of the restaurant and into her automobile. Although appellant started the vehicle, she did not move it. After -3- waiting awhile, appellee approached appellant and informed her she would have to move her automobile. After appellant ignored appellee, the officer asked for her license and explained he would have to cite her for "Impeding Traffic" pursuant to Codified Ordinance 433.04. As appellee handed appellant the citation for signature, a woman and a young girl came out of the restaurant and entered the automobile. Appellant refused to sign the citation. After warning appellant several times, appellee arrested her for refusing to sign the citation pursuant to R.C. 2935.26(A)(3). While appellant was in custody, she became ill and was taken to St. Luke's Hospital for what was later deemed "hypertensive crisis." Appellant, on the other hand, testified she noticed appellee writing the parking ticket through the restaurant window. After going outside, she noticed the ticket had already been written so she went back into the restaurant and returned to her automobile with her daughter and friend. The officer then approached appellant and asked for her driver's license and produced a second citation. Since appellant thought this was a second parking ticket for the same offense, she refused to sign it. It was at that time, appellant was placed under arrest and put into appellee's patrol car. Appellant paid the parking ticket and, after pleading not guilty to the "Impeding Traffic" charge, received a judgment of acquittal concerning this citation. Subsequently, appellant brought suit in state court against the City of Cleveland, its -4- then-Mayor George Voinovich, the Chief of Police and Officer Bell. Appellant's claims consisted of: 1) false arrest, 2) intentional, reckless or negligent infliction of emotional distress and 3) malicious prosecution. All defendants except Officer Bell were dismissed before jury deliberations. On March 15, 1994, the jury returned a verdict for defendant- appellee on all counts. Plaintiff-appellant motioned for judgment notwithstanding the verdict or in the alternative a motion for new trial. On July 22, 1994, the trial court denied appellant's motions. While appellant's initial appeal was dismissed for failure to file a brief, we granted appellant's motion to reinstate on February 1, 1995 and therefore address the claimed errors. II. FIRST ASSIGNMENT OF ERROR Plaintiff-appellant's, Mary F. Wingard's, first assignment of error states: THE TRIAL COURT ERRED WHEN IT INTRODUCED TO THE JURY THE CONCEPT OF PHYSICAL CONTROL AND INSTRUCTED THE JURY AS TO ITS ELEMENTS. A. ISSUE RAISED: WHETHER APPELLANT WAS PREJUDICED BY TRIAL COURT'S INSTRUCTION ON PHYSICAL CONTROL Plaintiff-appellant argues the trial court erred by introducing and defining the term "physical control" to the jury since the term is not an element of a violation under Cleveland Codified Ordinance 433.04. By erroneously introducing this concept to the jury while instructing the jury, the trial court prejudiced appellant and committed reversible error. -5- Appellant's first assignment of error is not well taken. -6- B. CLEVELAND CODIFIED ORDINANCE 433.04 Appellant was arrested and cited for violating Cleveland Codified Ordinance 433.04 which reads in pertinent part: (a) No person shall operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or to comply with law. C. APPELLANT WAS NOT PREJUDICED BY INCORRECT INSTRUCTION AS APPELLEE IS IMMUNE FROM APPELLANT'S STATE CHARGES. In the case sub judice, the trial court instructed the jury on the term "operate": To operate a motor vehicle means to drive or be in actual physical control of a vehicle. To be in actual physical control of a vehicle requires that a person be in the driver's seat of a vehicle, behind the steering wheel, in possession of the ignition key, and in such a condition that he is physically capable of starting the engine and causing the vehicle to move. While the trial court's definition of "operate" is generally used regarding Ohio's traffic laws, see R.C. 4511.01(Y); OJI 545.29(B)(2), we find the definition inapplicable when applied to Cleveland Ordinance 433.04. By the clear and unambiguous language of the ordinance, a vehicle must be slow moving. See Cleveland v. Jackson (Sept. 25, 1986), Cuyahoga App. No. 50984, unreported. Thus, the trial's court definition, which encompasses elements in contradiction to the requirements of Codified Ordinance 433.04, was in error. However, while the trial court's -7- definition of "operate" was in error, we find no prejudicial effect. R.C. 2744.03 affords limited statutory immunity to a political subdivision and its employees, which includes police officers employed by the political subdivision. See Young v. Summit County (1990), 67 Ohio App.3d 661. However, R.C. 2744.03(A)(6) specifically provides that an employee is not immune from liability if either: (a) His acts or omissions were manifestly outside the scope of his employment or official responsibilities; (b) His acts or omissions were with malicious purposes, in bad faith, or in a wanton or reckless manner. In this case, the parties have stipulated appellee was working within the scope of his employment as a police officer. With regards to R.C. 2744.03(A)(6)(b) the court in Cole v. Crowthers (Oct. 12, 1994), Hamilton App. No. C-930767, unreported, stated: "Malice," for purposes of determining statutory immunity, is the willful and intentional design to do injury or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified. "Bad faith" involves a dishonest purpose, conscious wrongdoing, the breach of a known duty through some ulterior motive or ill- will partaking of the nature of fraud, or an actual intent to mislead or deceive another. Finally, an individual acts in a "reckless" or "willful and wanton" manner if he or she (1) perversely disregards a known risk, or (2) acts or intentionally fails to act when he or she has the duty to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to -8- realize not only that his or her conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than which is necessary to make his or her conduct negligent. (Citations omitted.) Importantly, appellee raised the defense of immunity under R.C. 2744 in his answer. See Mitchel v. Borton (1990) 70 Ohio App.3d 141. After a review of the record, we agree with the jury and find appellant has failed to establish either a malicious purpose, bad faith, or that appellee acted in a wanton or reckless manner. For that reason, as a matter of law, appellee is immune from appellee's state claims of false arrest, intentional reckless or negligent infliction of emotional distress and/or malicious prosecution. Appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Plaintiff-appellant's, Mary F. Wingard's, second assignment of error states: THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFF'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF WHETHER THERE WAS PROBABLE CAUSE FOR THE CHARGE ON WHICH THE ARREST WAS BASED. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT Plaintiff-appellant argues since the automobile was not moving, there was no probable cause for the issuance of the "Impeding Traffic" citation as defined in Codified Ordinance 433.04. As such, the trial court erred in denying the motion for directed verdict on the issue of probable cause. -9- Appellant's second assignment of error is not well taken. -10- B. STANDARD OF REVIEW: DIRECTED VERDICT A motion for directed verdict is governed by Civ.R. 50(A) which states in pertinent part: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds upon any determinative issue reasonable minds could come but to one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party on that issue. Thus, when hearing a motion for directed verdict, a court must only determine whether the non-moving party has presented sufficient evidence to allow the jury to take the issue to a jury. See Louise Young, et al. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., et al. (April 8, 1993), Cuyahoga App. No. 62152, unreported. C. TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT. Appellant argues an essential element of Codified Ordinance 433.04 is that a vehicle be in motion. Since it is undisputed appellant was not moving, appellant argues there is no possibility she could have violated the ordinance, hence reasonable minds could only conclude there was no probable cause for appellee's actions. We disagree. Due to appellee's qualified immunity to appellant's state charges, the only actionable claim remaining is based on Section 1983, Title 42, U.S.Code. In a Section 1983 suit, questions of probable cause must be submitted to the jury if there is room for -11- a difference of opinion. Murphy v. City of Reynoldsburg, et al. (August 8, 1991), Franklin App. No. 90-AP-1296. A review of a number of cases from our own district demonstrates the inconsistent application of Cleveland Ordinance 433.04. See, e.g., Jackson, supra; State v. Williams (1994), Ohio App.3d 538; State v. Newsome (1990), 71 Ohio App.3d 73. Due to this district's contradictory application of Codified Ordinance 433.04, we find there to be reasonable room for a difference of opinion. Thus, the trial court properly denied appellant's motion for directed verdict on the issue of probable cause. Additionally, due to the inconsistent application of Codified Ordinance 433.04, we find appellee acted reasonably in issuing the traffic citation and subsequently arresting the appellant. As such, appellee is subsequently immune from liability on an action under 42 U.S.C. 1983. See Anderson v. Creighton (1987), 483 U.S. 635. Appellant's second assignment of error is not well taken. IV. THIRD AND FOURTH ASSIGNMENTS OF ERROR Plaintiff-appellant's, Mary F. Wingold's, third and fourth assignments of error provide: THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL. THE TRIAL COURT ERRED WHEN IT SUSTAINED AN OBJECTION OF DEFENDANTS TO THE ASSERTION DURING PLAINTIFF'S CLOSING ARGUMENT THAT PLAINTIFF HAS PREVAILED AFTER A TRIAL ON THE -12- CHARGE FOR WHICH SHE WAS CITED IN THE TRAFFIC CITATION IN ISSUE. Due to our disposition of appellant's first and second assignments of error, these two issues have been rendered moot. App.R. 12(A)(1)(c). The judgment of the trial court is affirmed. -13- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .