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Witcher v. Fairlawn7/31/1996
EDWARD J. MAHONEY, Judge.
Plaintiff, John Witcher, by and through his administrator, Lois Witcher, appeals the Summit County Court Of Common Pleas grant of judgment in favor of defendant, city of Fairlawn, Ohio. We affirm.
In 1980, John Witcher patronized the Summit Mall in Fairlawn, Ohio. He Purchased some items with two $100 bills. A store clerk thought the bills were counterfeit and called mall security who in turn contacted Fairlawn Police Department. The police arrived, and, according to Witcher, "detained , greatly embarrassing and humiliating him." The police contacted the manager of a bank within the mall who examined the bills and informed the police that the bills were genuine. The police then released Witcher.
In 1981, Witcher sued several parties for false imprisonment. The case took several procedural turns including two reversals by this court. Witcher v. Fairlawn (July 7, 1993), Summit App. No. 15982, 1993 WL 243803, and (June 15, 1994), Summit App. No. 16591, unreported, 1994 WL 263185. Ultimately, Witcher's claim remained only against Fairlawn. In 1995, Witcher died and his wife filed a suggestion of death with the trial court and substituted herself as administrator of his estate. Fairlawn then moved to dismiss the complaint, arguing that the cause of action for false imprisonment did not survive Witcher's death.
The trial court found that the cause of action did not survive. In its ruling, the trial court reasoned that false imprisonment involves an injury to the personal rights of the plaintiff and not injuries to the plaintiffs physical body. Therefore, false imprisonment is similar to the torts of libel, slander, malicious prosecution and invasion of privacy because these torts also provide causes of action for the infringement of personal rights. Consequently, the false imprisonment action did not survive Witcher's death inasmuch as libel, slander, etc. do not survive pursuant to Ohio's abatement statutes.
Appellant raises one assignment of error. Appellant contends that the trial court incorrectly determined that the cause of action did not survive Witcher's death. Appellant argues that Ohio's abatement statutes do not specifically state that false imprisonment abates at the time of plaintiff's death. Appellant urgesthis court to liberally construe these statutes to allow the cause of action to go forward. Moreover, appellant contends that the tort of false imprisonment inherently contains within it an assault. Appellant argues that because the false imprisonment tort requires at least a threat of force, the threat of force necessarily demonstrates that an assault is contained within false imprisonment inasmuch as an assault, which places the plaintiff in apprehension of a battery, would occur when the threat of force is made. Consequently, appellant contends this court should overrule the trial court's dismissal of the lawsuit.
This court initially notes that appellee never captioned its motion to dismiss under one of the specific categories of Civ.R. 12(B). Inasmuch as the appellee's motion and the trial court's ruling centered on whether appellant could state a claim upon which relief could be granted, this court applies the appropriate standard of review under Civ.R. 12(B)(6). "In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. The trial court's focus should be strictly upon the co
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