Yatsko et al v. Graziolli et al

Filing 108

Opinion and Order denying Plaintiffs' Motion for reconsideration. Related Doc # 101 . Judge Dan Aaron Polster on 6/2/20.(P,R)

Case: 1:18-cv-00814-DAP Doc #: 108 Filed: 06/02/20 1 of 4. PageID #: 3058

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELISSA YATSKO, et al.,
Plaintiffs,
v.
SERGEANT DEAN GRAZIOLLI, et al.,
Defendants.

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CASE NO. 1:18-CV-814

JUDGE DAN AARON POLSTER

ORDER & OPINION

Before the Court is Plaintiffs’ Motion for Reconsideration, Doc #: 101. Plaintiffs assert
that the Court failed to consider whether Graziolli was acting recklessly for purposes of Ohio
Rev. Code Ann. § 2744.03(a)(6) when he shot and killed Thomas Yatsko. Doc #: 101 at 7.
Defendants Dean Graziolli and the City of Cleveland filed responses in opposition, respectively
Docs ##: 102; 104, and Plaintiffs filed a reply, Doc #: 105.
A motion for reconsideration should be granted when the movant establishes that there is:
“(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling
law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620
(6th Cir. 2005).
Plaintiffs allege only a clear error of law. Doc #: 101 at 3. In its May 1, 2020 Opinion,
this Court found that no reasonable jury could conclude that Graziolli’s act of shooting Yatsko
was with malicious purpose, in bad faith, or in a wanton or reckless manner. Doc #: 100 at 20-21.
Accordingly, the Court concluded that Graziolli is entitled to statutory immunity under

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§ 2744.03(a)(6) if a jury finds he was acting within the scope of his employment as a police
officer or his official responsibilities. Doc #: 100 at 21. Plaintiffs contend that the Court
improperly treated “reckless” as interchangeable with “wanton.” Doc #: 101 at 3. In support,
Plaintiffs state that the Court neglected to define or clearly apply “reckless” in making this
finding. Id.
Graziolli and the City of Cleveland argue that reconsideration is not warranted because
the Court obviously evaluated recklessness despite failing to define the term. Docs ##: 102 at 3;
104 at 4.
Graziolli and the City of Cleveland are correct. This Court considered and decided that
no reasonable jury could conclude that Graziolli’s act of shooting Yatsko was with malicious
purpose, in bad faith, or in a wanton or reckless manner. Doc #: 100 at 20-21. In making this
finding, the Court did not consider “wanton” and “reckless” as interchangeable. And while its
Opinion does not define or clearly analyze “recklessness,” the Opinion’s analysis forecloses
finding that Graziolli’s act of shooting Yatsko was reckless.
However, for purposes of clarity, this Court will now explicitly define and apply the
reckless standard. “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
circumstances and substantially greater than negligent conduct.” Anderson v. The City of
Massillon, 134 Ohio St. 3d 380, 388 (2012).
The application of this standard is clearly demonstrated in the cases cited in Plaintiffs’
Motion for Reconsideration. In these cases, the courts found reckless conduct where an
intentional act caused a known or obvious risk of harm. Anderson, 134 Ohio St. 3d at 389
(affirming that a jury could conclude that firefighter’s actions were reckless if he drove a

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firetruck at a high rate of speed into an intersection with obstructed view and hit a car); Goodwin
v. City of Painesville, 781 F.3d 314, 334 (6th Cir. 2015) (affirming the district court’s conclusion
that an officer was reckless where he applied a taser to a person for 26 seconds and caused a
brain injury). Importantly, the actors in these cases did not intend to cause the harm that resulted.
Here, Graziolli did not act recklessly. Yatsko was punching Graziolli and said that
Graziolli would have to kill him. Doc #: 85-3 at 55-56. Graziolli then unholstered his pistol and
shot Yatsko twice to “survive the attack.” Doc #: 85-3 at 56. Unlike Anderson and Goodwin,
where the harm was an unintended result of intentional actions, Graziolli acted with the intention
of wounding Yatsko sufficiently to neutralize Yatsko’s attack. This intention was realized. In
other words, Graziolli did not consciously disregard a risk of harm – he was aware by firing his
pistol that Yatsko would be shot. And Graziolli was not indifferent to a risk of harm – he fired
his weapon with the purpose of harming Yatsko to stop the fistfight.
Plaintiffs’ attempt to broaden the recklessness analysis by arguing that disputed facts
remain on whether Graziolli was reckless in creating the situation that caused him to shoot
Yatsko. Docs ##: 85 at 32; 101 at 4. Specifically, Plaintiff asks the Court to consider their
allegations that Graziolli failed to carry less-than-lethal weapons, instigated Yatsko, and started
the fistfight. Id. But the risk of having to shoot someone is not a known or obvious risk that
results from an off-duty officer or security guard carrying only a firearm, even if that officer or
security guard starts a fistfight.
As this Court already found, whether Graziolli’s act of shooting Yatsko was reasonable is
a question for the jury. Doc #: 100 at 15. But no jury could conclude that intentionally shooting a
person in the middle of a fistfight where the person says that the shooter will have to kill him

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equates to a conscious disregard of or indifference to a known or obvious risk of harm to another
that is unreasonable under the circumstances and substantially greater than negligent conduct.
Because there was no clear error of law, Plaintiffs’ Motion for Reconsideration, Doc #:
101, is DENIED.

IT IS SO ORDERED.
/s/Dan Aaron Polster June 2, 2020
DAN AARON POLSTER
UNITED STATES DISTRICT COURT

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