COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71839 JERRY STRICKLAND, ET AL., : : Plaintiffs-Appellants : JOURNAL ENTRY : and vs. : OPINION : TOWER CITY MANAGEMENT CORP., : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 24, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 288152 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Martha V. Kim 1265 W. Sixth Street Suite 400 Cleveland, Ohio 44113 For defendants-appellees: John A. Albers James L. McCrystal, Jr. Glenn D. Southworth WESTON, HURD, FALLON, PAISLEY & HOWLEY 2500 Terminal Tower Cleveland, Ohio 44113-2241 David A. Bell Laura F. Kenney David C. Tryon PORTER, WRIGHT, MORRIS & ARTHUR 1700 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 For City of Cleveland: Brent Silverman Assistant Director of law City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 -3- NAHRA, J.: Appellants, Jerry Strickland, Devona Strickland, Selena Strickland, and Willie Strickland appeal the trial court's grant of summary judgment thereby denying their claims against appellees, Forest City Management, Tower City Properties, Robert Bonness, Albert Reese, Greg Ciurlik, Doug Melton, Paul Baeppler, Prioleau Green, Oliver Hill and James Mangan. Summary judgment was granted against appellants' claims of assault and battery, false imprisonment, false arrest, illegal search, police harassment and abuse, negligent infliction of emotional distress, defamation and discrimination under Title VII and analogous state laws. We find that there are no genuine issues of material fact regarding any of appellants' claims, thus, summary judgment is affirmed. On October 10, 1994, appellants and Devlin Nolan traveled to downtown Cleveland, Ohio to go shopping at Tower City Mall. Between 12:15 and 12:30 p.m., appellants and Nolan were on The Avenue, at Tower City, in the vicinity of the Body Shop and Golland shoes. On that same day one of the appellees, Officer Jim Mangan was assigned to truancy detail on The Avenue. This duty requires him to enforce section 605.41(a) of the Cleveland Municipal code which provides that: No child between the ages of six and seventeen, inclusive, other than a child that has been suspended or expelled from school, shall be at any place within the City except in attendance at school between the hours of 10:00 a.m. and 2:30 p.m. during any school day, unless the child has written proof from school authorities excusing him or her from attending school at that particular time, or unless the child is accompanied by a parent or -4- legal guardian, or a responsible adult selected by the parent or legal guardian to supervise the child. (Hereinafter, the daylight curfew law. ) While patrolling The Avenue, Officer Mangan observed appellants and Nolan loitering. He suspected a violation of the daylight curfew law, and investigated. He approached appellants and inquired as to their ages and asked for identification. Jerry and Devona produced identification; however, the others, who were minors, did not. Mangan continued to pursue the identity and ages of the three minors. Each time Mangan attempted to address the minors, Jerry Strickland attempted to intervene by shouting and physically approaching Mangan. Eventually, despite the efforts of Jerry, Officer Mangan determined that the others were minors. During this inquiry, Officer Mangan tried to explain the daylight curfew law in Cleveland, to the group, and radioed for backup in case trouble arose. Five off-duty police officers; appellees, Officer Prioleau Green, Sgt. Albert Reese, Jr., Det. Doug Melton, Officer Paul Baeppler and Officer Robert Bonness and two private security guards, appellees, Oliver Hill and Greg Ciurlik, responded. All of the officers, including Mangan, and both security guards were in the employ of appellee, Forest City Enterprises. Once Mangan determined that these children were underage and from out of town, he inquired as to why they were not in school. Devona informed him that it was a holiday, Columbus day. Jerry told him that they were shopping in Cleveland with their parents' permission, and that he -5- and Devona were the appointed guardians of their brother, sister and Nolan. After backup had arrived, Officer Mangan escorted the group to the security offices, room 502, so that he could call their parents and their respective schools. Appellants followed Mangan and the other seven officers to the offices and were placed in a holding room. There, Mangan entered the holding room and asked the three minors, Selena, Willie and Devlin for their names, addresses, parents' names and phone numbers, and school names and phone numbers. Mangan called to verify the minors' stories and learned they were absent from school and in Cleveland with their parents' permission and had Jerry and Devona as their appointed guardians. While Officer Mangan was on the phone, Officer Green became concerned with Jerry Strickland's behavior and decided to perform a pat-down frisk to ensure the safety of everyone present. Green asked Jerry to step outside of the holding room and initiated this frisk. Jerry resisted Officer Green's efforts and kept turning around and confronting Green face to face. Officer Bonness decided that Green was in need of assistance, and determined that in order to subdue Jerry, into a non threatening pat-down, slight force would be necessary. In the process of subduing Jerry, Officers Bonness and Green slammed appellant against the wall and Officer Bonness proceeded to hold Jerry's forefinger and pinky in his hand and apply slight pressure. Officer Green found nothing threatening on Jerry's person and returned him to the holding cell. At no time -6- during this search did Jerry indicate that he was being injured by either Officers Green or Bonness. After Officer Mangas received the appropriate information, and had spoken to the children's parents, he returned to the holding room to find the appellants acting in a loud and boisterous manner. Because of these actions, Officer Mangan determined that it would be in the best interest of the children, and The Avenue, if the appellants and Nolan were escorted out of the mall. After being escorted out, and upon his departure, Jerry Strickland extended his middle finger in a gesture to Mangan. Mangan subsequently consulted with the City prosecutor, who recommended filing criminal charges against Jerry and Devona Strickland for disorderly conduct. Jerry and Devona disposed of these charges by pleading no contest. Appellants, by their own estimate, were in Tower City for a maximum of forty-five minutes. Of that time, appellants spent thirty minutes in security room 502. I. Appellants assign three errors for our review. Appellants' first and second assignments of error address the same issue and will be treated together. They state: I. SUMMARY JUDGMENT MAY BE GRANTED ONLY WHEN THERE ARE NO ISSUES OF LAW OR FACT IN DISPUTE. II. IN THE INSTANT CASE, THERE WERE NUMEROUS ISSUES IN DISPUTE AS A COMPARISON OF AFFIDAVITS OF PLAINTIFFS WITH THE AFFIDAVITS OF DEFENDANTS AS WERE APPENDED TO EACH PARTY'S BRIEFS WOULD CLEARLY SHOW. THE TRIAL COURT HAD NO BASIS FOR DETERMINING DEFENDANT'S (SIC) AFFIDAVITS WERE MORE CREDITABLE (SIC) THAN PLAINTIFFS' AS EACH AFFIDAVIT WAS MADE -7- UNDER OATH. SUCH ISSUES CONCERNING THE CREDITABILITY (SIC) OF WITNESSES ARE PROPERLY THE DECISION OF A JURY AND ARE NOT TO BE DECIDED ON A MOTION FOR SUMMARY JUDGMENT. We review a grant of summary judgment de novo. Soltis v. Wegman, Hessler, Vanderburg & O'Toole (Feb. 13, 1997), Cuyahoga App. No. 69602, unreported. In an action for summary judgment, the court is compelled to affirm provided that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) construing the evidence and the inferences to be drawn therefrom in favor of the non-moving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant. Civ.R. 56(C), Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46. Further, once the moving party has satisfied its burden, to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the non-moving party has no evidence to support the non-moving party's claims, the non- moving party must demonstrate, through the use of specific facts, there is a genuine issue for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 254. The appellants brought seven claims against appellees and each will be treated individually. It will be easier to address each count individually if we first dispose of the claim of vicarious liability as to Tower City Properties and Forest City Management. When a private entity employs an off-duty police officer as a security officer, it will only be held vicariously liable when the -8- police officer, acting in a dual capacity of private employee and police officer, acted outside his public duties, but within the scope of his employment with the private entity, either for its benefit or at its direction. Evans v. Smith (1994), 97 Ohio App.3d 59, 66, 646 N.E.2d 217. In the case at bar, the officers' conduct was within the scope of their public duties by enforcing Cleveland Municipal Code 605.41(a). As a result, summary judgment was proper as to all claims regarding Tower City Properties and Forest City Management, the police officers' private employer. Under the doctrine of qualified immunity, the employees of a political subdivision are immune from liability unless the employees' acts or omissions were manifestly outside the scope of employment or official responsibility or were with malicious purpose, in bad faith or in a wanton and reckless manner. R.C. 2744.03(A)(6). In other words, the Ohio legislature has determined that a police officer, for example, cannot be held personally liable for acts committed while carrying out his or her official duties unless one of the exceptions is established. Cook v. Cincinnati (1995), 103 Ohio App.3d 80, 90, 658 N.E.2d 814. Malice is the willful and intentional design to do injury through conduct which is unlawful. Jackson v. Butler County Board of Commissioners (1991), 76 Ohio App.3d 448, 453, 602 N.E.2d 363. Bad Faith connotes a dishonest purpose, conscious wrongdoing, intent to mislead or deceive, or the breach of a known duty through some ulterior motive or ill will. Id. In order to prove wanton -9- misconduct, mere negligence is not enough. Fabrey v. McDonald Police Department (1994), 70 Ohio St.3d 351, 356, 639, N.E.2d 31, 35. Wanton misconduct is a complete disregard for the care and safety of others, indifferent to the consequences, with a belief that probable harm will result. Id. Accordingly, we begin this analysis with a presumption of immunity, discounted only through one of the enumerated exceptions. Count I of appellants' complaint alleges the torts of false arrest and false imprisonment. In a false arrest, false imprisonment exists, but the detention is by reason of an asserted legal authority to enforce the process of the law; in a false imprisonment, the detention is purely a matter between private persons for a private end, and there is no intention of bringing the person detained before a court, or of otherwise securing the administration of the law. Evans, 97 Ohio App.3d at 70, Rogers v. Barbera(1960), 170 Ohio St. 241, 243-244, 164 N.E.2d 162, 164. In their essential elements, false imprisonment and false arrest are indistinguishable in that each claim requires proof that one was intentionally confined within a limited area, for any appreciable time, against his will and without lawful justification. Evans, supra,Ashcroft v. Mt. Sinai Medical Center (1990), 68 Ohio App.3d 359, 364, 588 N.E.2d 280, citing Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71, 362 N.E.2d 646, 647. Further, since the element of confinement or restraint is necessary to establish either of these claims, false imprisonment and false arrest are not satisfied by a person's submission to the verbal direction of -10- another, absent a showing of force or coercion. Honesty v. Leader Discount Drug Stores Co. (Oct. 1, 1987), Cuyahoga App. No. 52798, unreported. In Ohio, a police officer has the authority to arrest and detain, until a warrant can be obtained, a person found violating an ordinance of a municipal corporation. R.C. 2935.03. A police officer has long been vested with the authority to arrest and detain one violating the law whether the officer is on or off-duty. State v. Van Barg (1975), 44 Ohio Misc. 11, Village of Brookville v. Louthan (1982), 3 Ohio Misc.2d 1. The record indicates that appellants were not forced or coerced into going to security room 502. Appellants, by affidavit or at deposition, stated that they voluntarily followed Mangan to clarify the matter. Even though Jerry Strickland stated in his affidavit that he felt arrested, detained, and held against his will due to the apparent authority of the police officers, this is insufficient to establish forceful coercion, malicious conduct, or bad faith. Furthermore, any actions concerning detainment taken by the police officers was justified because they were investigating if appellants were in violation of the daylight curfew law. Accordingly, summary judgment concerning appellants' claims of false imprisonment or false arrest was proper. Counts II, III, and V of the appellants' complaint allege excessive force and assault and battery. In Graham v. Connor (1989), 490 U.S. 386, 109 S.Ct. 1865, the United States Supreme Court held that when a court examines instances of excessive force, -11- they are to be analyzed under an objective reasonableness standard. See, Williamsv. Franklin County (1992), 84 Ohio App.3d 826, 830, 619 N.E.2d 23. Objective reasonableness is a criterion which defines `reasonable force' in terms of what an average person looking back on the arrest would think was justified. Id. However, [t]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene; rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396-397. In considering what is reasonable, every attendant circumstance must be considered including the severity of the crime, the threat of safety and any attempts by the suspect to interfere with the officers' duties. Id. Appellants urge that officers Bonness and Green used excessive force in their performance of a weapons pat-down search of Jerry Strickland. Both the appellants' and appellees' affidavits and/or depositions show that Jerry Strickland was disruptive during the appellee officers' attempt to effectuate this pat-down. Jerry, by his own admission, resisted the officers' attempts. It is reasonable to infer that officer Green felt threatened and that Officer Bonness correctly interpreted Green's need for help. Further, the actions taken by Bonness and Green: spinning Jerry around, slamming him against the wall, and bending back his pinky and forefinger in order to subdue him, were also reasonable given the totality of the circumstances. Additionally, neither of the actions taken by the Officers can be considered wanton, malicious or in bad faith so as to discount their immunity. -12- Accordingly, summary judgment regarding appellants' claim of excessive force was appropriate. Assault is defined as the wilful threat to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact; the threat or attempt must be coupled with a definitive act by one who has the apparent ability to do the harm or to commit the offensive touching. An essential element of the tort of assault is that the actor knew with substantial certainty that his or her act would bring about harmful or offensive contact. Smith v. John Deere (1993), 83 Ohio App.3d 398, 406, 614 N.E.2d 1148. To be liable for the tort of battery, the actor must know with certainty that the act in which he is engaging will bring about harmful and/or offensive contact. Id., Scott v. Perkins (1975), 74 Ohio Op.2d 280, 282. Generally, a police officer is not liable for an injury inflicted upon a suspect when he is using reasonably necessary force to overcome any resistance in the act of his duties. State v. Sells (1939), 30 Ohio L. Abs. 355. Further a police officer may, in a civil action for assault and battery allegedly occurring during an investigatory stop, utilize as a defense that it is within his duty to use the necessary force to subdue and arrest potential lawbreakers. State v. Yingling (1942), 36 Ohio L.Abs. 436, 443. Further, in Ohio it is standard practice for the courts to follow the principles enunciated by the United States Supreme Court, however, Ohio courts will generally afford a police officer -13- the utmost protection when he acts in good faith. In Re Pickering (1970), 25 Ohio App.2d 58, 67, 266 N.E.2d 248. Strickland claims that during the course of the pat-down, Officer Green slammed him against the wall. Although this action by Officer Green may be considered unusual, it is clear from the record that Green responded to the uncooperative acts by appellant. Axiomatic in our objective interpretation of his actions is that Officer Green's actions were in response to the actions of appellant. It was reasonable for Officers Bonness and Green to subdue Strickland in order to effectuate their search. If Strickland had not attempted to thwart the officers' attempts to perform their duties, no injury would have occurred. As a result, the appellee officers acted within reason in subduing appellant and summary judgment was proper on appellants' claim of assault and battery. In Count IV of appellants' complaint they allege an illegal search. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, held that a limited pat-down search or frisking of a suspect on the street is justified if the police have a reasonable belief, based upon direct observation of the suspect's behavior, that the suspect was engaged in criminal activity, or that the suspect may be armed and dangerous. At the center of this opinion were the Fourth Amendment rights afforded an individual in public places as weighed against the necessity of the police officers to carry out their duty. Id. -14- To justify a frisk, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subject to the detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief that the action taken was appropriate.?' Cf. Carroll v. United States (1925), 2667 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, Beck v. Ohio (1964), 379 U.S. 89, 96-97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 148. Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more than hunches, a result this court has consistently refused to sanction. See, e.g. Beck v. Ohio, supra; Rios v. United States (1960), 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, Henry v. United States (1959), 362 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. (Footnote omitted.) Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Further, until a suspect is formally placed under arrest, any police detention of a suspect merely amounts to a Terry stop. United States v. Capperman (1985), 764 F.2d 786, 792. -15- The record reflects that Officers Mangan, Bonness and Green did possess specific and articulable facts upon which an investigatory stop was necessary. Officer Mangan detained the appellants because he believed members of their party to be in violation of the daylight curfew law. From the outset, appellant, Jerry Strickland was being loud, offensive and somewhat aggressive in his conduct. Upon arrival at security room 502, his conduct continued to be aggressive and obnoxious, and Officer Green observed him place his hands in and out of his pockets several times. Further, appellant, Devona Strickland, was also vociferous, which only goaded Jerry Strickland into more apparent disobedience. Fearing that Jerry Strickland might be violent, and that he might possess a weapon, Officer Green frisked him. At no time during the pat-down did either Officer Green or Bonness reach into a pocket of appellant, as they were able to determine that no weapon existed through an exterior search. These factors, considered together, establish that the officers did have reasonable suspicion based upon articulable facts to justify an investigatory frisk for weapons. As a result, the trial court's issue of summary judgment was proper as to appellants' claim of illegal search. Count VI of appellants' claim alleges the tort of defamation. Appellants maintain that one or more of the appellees embarrassed and humiliated them by stating loudly on The Avenue that they were being escorted to the security room, and by telephoning the minor appellants' schools concerning their truancy. -16- The record indicates however, that it was only officer Mangan who participated in either event mentioned by the appellants. A claim of defamation arises when an unprivileged, false publication is made. This false publication must cause injury to the plaintiff's reputation, expose him to public hatred, contempt, ridicule, shame or disgrace, or effect him adversely in his trade or business. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 371, 668 N.E.2d 982; see, also, Ashcroft v. Mt. Sinai Medical Center (1990), 68 Ohio App.3d 359, 365, 588 N.E.2d 280. Further, [t]he recipient must have understood the defamatory meaning of the published statement. Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 184, 644 N.E.2d 1038. The truth of the statements made is a complete defense to a defamation claim. Schory & Sons, Inc. v. Society National Bank (1996), 75 Ohio St.3d 433, 445, 662 N.E.2d 1074; see, also, Ohio State Home Services, Inc. v. Better Business Bureau of Akron, Inc. (1993), 89 Ohio App.3d 732, 627, N.E.2d 602; R.C. 2739.02. Since truth is an absolute defense to a claim of defamation, and every statement made by Officer Mangan was true, summary judgment was proper as to this claim. Count VII of the appellants' complaint claims the there was discrimination under Title VII or the analogous state law. Title VII, 42 U.S.C. S2000 (e)-5, and its analogous state cousin R.C. 4112.01, et seq., relate solely to discrimination in employment. Franks v. Bowman Transportation Co. (1976), 424 U.S. 747, State, ex rel. v. Industrial Commission (1989), 45 Ohio St.3d 115, 543 N.E.2d -17- 1169. A claim under Title VII, in order to have effect, must prove the nexus of an employer, employee relationship. Without proof of this relationship no claim will lie. In the instant case, a claim for discrimination by the appellees does not fall under Title VII. There is no employer, employee relationship upon which to base this claim. As a result, summary judgment on appellants' claim of discrimination under Title VII and its analogous state cousin was appropriate. In Count VIII of their complaint, appellants allege negligent infliction of emotional distress. As Ohio has come to recognize claims in negligence for mental suffering where no contemporaneous physical injury is present, certain safeguards have been adopted to prevent frivolous and fraudulent claims. Two requirements are that the emotional injury be both `serious' and `reasonably foreseeable' to permit recovery Frys v. Cleveland (1995), 107 Ohio App.3d 281, 285, 668 N.E.2d 929, 932, quoting, Paugh v. Hanks (1983), 6 Ohio St.3d 72, 78, 451 N.E.2d 759, 765. The court in Paugh determined that in order to maintain an action of negligent infliction of emotional distress, the severity of the distress must be serious. Serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case. Paugh, syllabus, paragraph one. Moreover, mere humiliation, upset or hurt feelings, embarrassment -18- or any other trifling mental disturbance, are insufficient as a matter of law to establish serious emotional distress. Carney v. Knowlwood Cemetary Assn. (1986), 33 Ohio App.3d 31, 40, 514 N.E.2d 430, 438, Frys, supra, Ashcroft, supra. In their deposition appellants concede that the only emotional distress which they suffered was embarrassment, stress, anxiety, and humiliation. The appellants also state that at no time did they seek out emotional or psychological counseling for this distress. Clearly, the record indicates that appellants did not suffer any mental disturbance which could be classified as debilitating, or not be adequately coped with by any reasonable person. Accordingly, summary judgment as to appellants' claim for negligent infliction of emotional distress was appropriate. Appellants also seek an award of punitive damages. However, since liability does not rest with appellees on any of the aforementioned counts, this assignment is moot. See, App.R. 12(b)(6). II. Appellants' third assignment of error states: III. THE COURT DID NOT ARTICULATE A DETERMINATION OF STATUTORY LAW APPLICABLE TO THE SITUATION, AN ISSUE WHICH WAS ALSO IN DISPUTE BETWEEN THE PARTIES. When a trial court does not play the role of fact finder, as in issuing summary judgment rulings, it has no duty to issue findings of fact or conclusions of law. Civ.R. 52; see, also, -19- Paramount Supply Co. v. Sherlin Corp. (1984), 16 Ohio App.3d 176, 180, 475 N.E.2d 197. Accordingly, appellants' third assignment of error is overruled. Judgment affirmed. -20- It is ordered that appellees recover of appellants their 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. JOSEPH J. NAHRA JUDGE SWEENEY, JAMES D., C.J., and McMONAGLE, TIMOTHY E., J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .