Sharp v. Cleveland Clinic , 176 Ohio App. 3d 226 ( 2008 )

{¶ 33} I respectfully dissent.

{¶ 34} First, I respectfully suggest that the majority ignores the Ohio Supreme Court's holding that once the privilege to detain a person expires, liability for false imprisonment arises. Cf. Bennett v. Ohio Dept. of Rehab. Corr. (1991), 60 Ohio St.3d 107, 573 N.E.2d 633, syllabus. In this case, Nurse Sharp agreed to drug tests following the accusation that she was diverting narcotics. The clinic may be said to have possessed a privilege, therefore, to limit or confine her movements in some fashion until those tests were completed. However, it points to no authority allowing it to limit Nurse Sharp's movements once the tests were completed. Rather, it falls back on the assertion that those limitations were justified by the suspicion that she was on drugs and thus could not operate her vehicle safely.

{¶ 35} The reasoning is tautological. The clinic points to no evidence by a qualified expert — such as a physician or drug-addiction specialist — that Nurse Sharp exhibited behavioral characteristics typical of a person on narcotics and incapable of driving safely. The suspicion of drug use was founded on the discrepancies in her recordkeeping, not her behavior. If founded on the latter, one reasonably might ask how the clinic could allow Nurse Sharp to work for half a shift the day of this incident before pulling her off the floor. In concluding that the clinic had reasonable cause to prevent Nurse Sharp from driving following the conclusion of her voluntary drug tests, the majority, like the trial court, breaches the confines of Civ. R. 56. It weighs the evidence, rather than construing it in her favor.

{¶ 36} Similarly, I would find that a genuine issue of material fact exists regarding whether Nurse Sharp was falsely imprisoned following the appearance of the clinic's police in the emergency room. An implied threat of the use of force to limit a person's freedom of movement is sufficient to establish a claim for false imprisonment. Ware v. Shin, 6th Dist. No. L-05-1130, 2006-Ohio-976, 2006 WL 513960, at ¶ 18. As many Ohio courts have pointed out, the threat to call the police or security, or the appearance of police or security at the scene of a dispute, necessarily implies that force will be used. Id. at ¶ 20 (beauty salon clerk's threat to call police is sufficient to establish genuine issue of material fact whether customer was confined for purposes of false-imprisonment claim); Kalbfell v. Marc Glassman, Inc., 7th Dist. No. 02 CO 5, 2003-Ohio-3489, 2003 WL 21505264, at ¶ 22 (store security guard following alleged shoplifter to store management office and accusing her of shoplifting and being banned from store is sufficient to establish confinement for purposes of false-imprisonment claim); Mitles v. Young (1978), 59 Ohio App.2d 287, 293, 13 O.O.3d 286, 394 N.E.2d 335.

{¶ 37} Condo v. B R Tire Co. (May 29, 1996), 7th Dist. No. 95 C.A. 166, 1996 WL 290963, relied upon by the majority to establish that the appearance of the police at the scene of a dispute does not constitute confinement, is distinguishable. In that case, the auto repair shop had determined that the appellant's brakes were unsafe for driving and called the police only when the appellant evinced his purpose of continuing to use the car. Id. at 1-2. Thus, there was objective evidence the appellant was preparing to commit a hazardous, and criminal, act, justifying the auto repair shop in calling the police, and the police, in responding. In this case, there was only evidence that Nurse Sharp's recordkeeping was poor and that she was nervous. These facts might — or might not — indicate that she was diverting narcotics for personal use. The resolution of factual disputes requires trial by jury, not disposition in summary proceedings.

{¶ 38} I would reverse the judgment and remand this matter for trial.