Ohio Supreme Court, 1972

Schulman v. City of Cleveland

Ohio Supreme Court · Decided May 24, 1972 · Brown, Corrigan, Herbert, Leach, Neill, Schneider, Stern

30 Ohio St. 2d 196; 283 N.E.2d 175; 59 Ohio Op. 2d 196; 1972 Ohio LEXIS 453

Cases that cite this one

57 later published cases cite this decision. The 25 that cite it most often are listed here.

Zieber v. Heffelfinger, 08ca0042 (3-17-2009) (Ohio Ct. App. 2009)
Maternal Grandmother v. Hamilton Cty. Dept. of Job & Family Servs. (Slip Opinion) (Ohio 2021)
Godwin v. Facebook, Inc. (Ohio Ct. App. 2020)
Anderson v. Toeppe (Ohio Ct. App. 1996)
Bennett v. Brown (Franklin County Municipal Court 1974)
Lower v. Lower (Ohio Ct. App. 2024)
Poland v. Ohio Parole Bd. (Ohio Ct. App. 2023)
Gemperline v. Franano (Ohio Ct. App. 2021)
Miller v. Med. Mut. of Ohio (Ohio Ct. App. 2013)
Thomas v. Jackson Hewitt, Inc. (Ohio Ct. App. 2011)
Northpoint Properties, Inc. v. Petticord (Ohio Ct. App. 2008)
Groob v. KeyBank (Ohio 2006)
Dipietro v. Lighthouse Ministries (Ohio Ct. App. 2005)
Mills v. Deere, Unpublished Decision (5-6-2004) (Ohio Ct. App. 2004)
Mills v. Deehr, Unpublished Decision (5-6-2004) (Ohio Ct. App. 2004)
Cincinnati Arts Ass'n v. Jones (Court of Common Pleas of Ohio, Hamilton County 2002)
Szydlowski v. Ohio Department of Rehabilitation & Correction (Ohio Ct. App. 1992)
Osborne v. Lyles (Ohio 1992)
Taylor v. Doctors Hospital (Ohio Ct. App. 1985)
Morgan v. Natale (Ohio Ct. App. 2022)
Kennedy v. Dottore (Ohio Ct. App. 2020)
Tuttle v. Collins (Ohio Ct. App. 2020)
Harper v. Weltman, Weinberg & Reis Co., L.P.A. (Ohio Ct. App. 2019)
Coventry Group, Inc. v. Gottlieb (Ohio Ct. App. 2014)
Hicks v. Garrett (Ohio Ct. App. 2012)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Per Curiam.

The question of whether Donald J. Guittar acted within the scope of his employment as an employee and agent of the city is prefatory to any consideration of governmental immunity in this matter. As we stated in Rogers v. Allis-Chalmers Mfg. Co. (1950), 153 Ohio St. 513, 526, 92 N. E. 2d 677:

“In order to obligate a master to respond in damages for the negligence of a servant it is necessary * * * that the servant be acting within the scope of his employment * * See, also, Little Miami Rd. Co. v. Wetmore (1869), 19 Ohio St. 110, and Higbee Co. v. Jackson (1920), 101 Ohio St. 75, 128 N. E. 61.

We are unable to discern any grant of authority in either the Revised Code or the Cleveland Municipal Charter which allows an assistant law director to gratify his personal resentments, either in the form of a physical assault or a lawsuit arising therefrom, while engaged in the execution of his appointed tasks.

As to the claim for damages against the city arising out of the alleged attack upon Schulman by Guittar, our statement in Vrabel v. Acri (1952), 156 Ohio St. 467, 474, 103 N. E. 2d 564, is dispositive:

*198* * an intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefore.” See, again, Little Miami Rd. Co. v. Wetmore, supra. Likewise, Guittar’s triggering of the criminal proceedings against Schulman, which forms the basis of the malicious prosecution charge in the instant case, cannot be considered more than a vehicle chosen by Guittar to vent a personal grievance.

While it is true that a demurrer (now motion to dismiss) technically admits certain allegations in a petition (now complaint), it is also well established that unsupported conclusions of the complainant are not so admitted.

The trial court’s judgment sustaining the demurrer was correct. Therefore, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.

Judgment reversed.

O’Neill, C. J., Schneider, Herbert, Corrigan, Stern, Leach and Brown, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.