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Gammon v. Blakeley12/4/1997
fficer in charge, Officer Blakeley made his approach to the house. While Officer Blakeley made his way to the rear door, Jason Gammon remained at the upstairs kitchen window. No weapon was in his hands at that time. After Officer Blakeley tossed the cigarettes at the agreed upon place and began to walk away, Jason Gammon yelled at Officer Blakeley to return. When Officer Blakeley continued his retreat, Jason Gammon picked up a handgun and leaned out the window. Jason Gammon pointed the weapon in the direction of Officer Blakeley. Two officers positioned in the backyard saw the gun pointed toward their fellow officer. The officers discharged their weapons, striking Jason Gammon.
Moments later, Brian and Briget Lewis began screaming that Jason had been shot and that Bridget was injured. Brian and Bridget Lewis left the house. The police entered and discovered Jason Gammon lying on the kitchen floor, dead. A silver handgun still was clutched in his hand.
Appellant, as administratrix of Jason Gammon's estate and individually, filed a complaint against the City of Euclid and twenty John Doe police officers. The complaint brought causes of action for violations of 42 U.S.C. Section 1983 for using deadly and excessive force, failure to train and monitor, and wrongful death. Euclid answered and counterclaimed for damage done to two police vehicles when the juveniles shot a tire and a windshield.
Euclid filed a motion for summary judgment. Appellant filed a motion to amend her complaint in order to substitute the names of the police officers for the John Doe officers named in the complaint. At the hearing held on Euclid's summary judgment motion, the trial court granted appellant's motion to amend. The trial court then granted summary judgment for Euclid as well as for the police officers. In Gammon v. City of Euclid (July 25, 1996), Cuyahoga App. No. 69549, unreported, this court affirmed the trial court's judgment as to Euclid but reversed the judgment in favor of the police officers as they had not filed a motion for summary judgment. The police officers then filed a motion for summary judgment which was granted by the trial court. Appellant opposed the motion, attaching as evidence the deposition of an expert witness. The witness opined that the officer in charge at the scene failed to properly supervise and communicate with his officers as he did not know Officer Blakeley was going to deliver the cigarettes to the youths. The expert stated that Officer Blakeley should not have made an unprotected approach to the house, especially without all of the other officers being aware of what Blakeley was about to do. The expert did agree that if a person comes to a window and points a gun in the direction of a police officer, the police could fire their weapons at that person.
The trial court granted the motion for summary judgment in favor of the police officers. This appeal follows.
II.
In her assignment of error, appellant contends the trial court erred in granting summary judgment. She asserts the defendants did not demonstrate appellant lacked evidence to support her claims against the police officers. Appellant relies on the evidence offered by her expert witness that the conduct of the police officers was contrary to accepted police standards. That conduct led to the death of Jason Gammon.
This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that:
(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 the evidence that reasonable minds can come
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